Pub 9 2021 Issue 1

The EEOC makes clear that the concerns about the pre-screening questions will not implicate the ADA where (1) an employer has offered a vaccine on a voluntary basis (i.e. employees choose whether to be vaccinated), which would mean that an employee’s refusal to answer the questions, would only mean the employer could refuse to administer the vaccine; or (2) an employee receives an employer-required vaccine from a third party that does not have a contract with the employer (i.e. a pharmacy, broker or other health care provider), the ADA would not apply to pre-screening questions. (c) Confidentiality Issues. The EEOC also makes clear that the pre-screening questions (whether voluntary or mandatory) and the responses to those questions should be maintained as confidential information, in a separate file (i.e. not the per- sonnel file), in accordance with the provisions of the ADA. Those employ- ers who administer vaccines themselves, or contract with a third-party provider to administer vaccines, should also be wary of their obligations under the Health Insurance Portability and Accountability Act (HIPAA), as to employee-provided information and vaccination records. (d) Employee Proof of a COVID-19 Vaccine. Employers may request and require employees to show proof of receipt of a COVID-19 vaccination. Such a question does not amount to a disability-related inquiry in and of itself. The EEOC cautions employers who ask “why” an employee has not or cannot receive a vaccine. These follow up questions, may elicit information about a disability and would need to be “job-related and consistent with busi- ness necessity” in accordance with the ADA. Employers who do wish to require that employees furnish proof of vaccination should instruct employees not to provide any medical information in connection with the vaccination record in order to avoid implicating the ADA. (e) Disability-related Exemptions to a Mandatory Vaccine Requirement The new EEOC guidance also provides some direction to employers for responding to employees who indicate they are unable to receive a vaccine due to a disability. The EEOC reiterates that employers can require that employees “not pose a direct threat to the health or safety of individuals in the workplace.” However, if a mandatory vaccine requirement has the effect of screening out individuals with disabili- ties, the “employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’”. The EEOC instructs employers to conduct an individualized assess- ment of four different factors to determine whether a “direct threat” exists. These include considering: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” If an employer concludes there is a direct threat, the EEOC indicates that the employer may “exclude” the employee from the workplace, but cautions employers against terminating the worker without first consid- ering whether there may be an accommodation available. The EEOC advises that employers should engage employees “in a flexible, inter- active process to identify workplace accommodation options” and also notes that one factor that warrants consideration may be the prevalence of employees in the workplace who have already received the vaccine. Practically speaking, it seems this analysis will still hinge on individual circumstances related to things like the nature of the employee’s disability, the work conditions, and the ability to mitigate potential hazards through job modifications such as increased social distanc- ing, PPE, telework, etc. Employees working in high-risk environments or with high-risk pop- ulations (i.e. food service and food processing, healthcare, nursing homes, and schools), may have fewer options for accommodating vaccine exemptions, especially given the risk surrounding the effi- cacy of PPE measures in industries requiring constant exposure and face-to-face close contact. But again, the EEOC guidance makes clear that the number of employees vaccinated will have a bearing on this analysis. (f) Religious Exemptions to a Mandatory Vaccine Requirement Similar to the disability-related exemptions, the EEOC guidance reiterates that employers who plan to require a vaccine also provide an exemp- tion where the employee maintains a “sincerely held religious belief” or observance which prevents them from taking the vaccine. This standard is fairly broad and encompasses more than traditional organized religions, but the protection would not extend to employees who seek an exemption due to political beliefs, personal objections to vaccinations, or safety-re- lated concerns with the vaccine. The EEOC notes that as in the case of the ADA, Title VII also allows employers to deny an employee’s request for an exemption to a mandatory vaccination if the employer can show an “undue hardship” by allowing the employee to forgo the vaccine. Again, the EEOC makes clear this would hinge on the individual circumstances applicable to each case but would largely depend on the employer’s ability to provide alternative protections for the employee, the rest of its workforce and, where necessary, members of the general public. (g) Genetic Information Nondiscrimination Act (GINA) Implications. Lastly, the EEOC makes clear that simply administering the COVID- 19 vaccine to employees or requiring employees to provide proof that they received the COVID-19 vaccine does not implicate Title II of GINA because it does not involve genetic information as defined by the law. Under Title II of GINA, employers may not use, acquire or disclose an employee’s genetic information in connection with their employment, subject to six narrow exceptions. As with the ADA, pre-screening questions, or where an employee provides more than just proof of a vaccination may still implicate GINA. Accordingly, the EEOC advises that employers should avoid pre-screening questions which implicate genetic information (which should be fairly easy to do) or require employees to obtain the vaccine through their own means and simply provide proof of the same to their employer, without any extraneous medical information. While the updated EEOC guidance provides certain clarification for employers contemplating workplace vaccination strategies, the excep- tions and exemptions under the ADA and Title VII are fact-intensive and will vary widely. Employers who do intend to adopt mandatory vaccination programs are advised to review potential reasonable accommodations for disabilities and sincerely-held religious beliefs and strategize how they will respond to such requests in order to minimize legal exposure under Title VII and the ADA. 2. Occupational Safety and Health Administration (OSHA). While OSHA has also not yet provided specific COVID-19 vaccination guidance, its longstanding position regarding the flu and other vaccines indicates support for employer mandates so long as employees are “properly informed of the benefits of vaccinations.” The agency has caveated this by clarifying that an employee who refuses a vaccine due to a medical condition that the employee reasonably believes would cause serious illness or death may still be protected by Section 11(c) of V Continued on page 28 FOCUS 27