Pub 2 2021 Issue 1

Issue 1 2021 11 WVADA have a contract with the employer (i.e., a pharmacy, broker or other health care provider), the ADA would not apply to prescreening questions. (c) Confidentiality Issues The EEOC also makes clear that the prescreening 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 personnel file), in accordance with the provisions of the ADA. Those employers 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 business 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 disabilities, 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 assessment 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 considering whether there may be an accommodation available. The EEOC advises that employers should engage employees “in a flexible, interactive 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 distancing, PPE, telework, etc. Employees working in high-risk environments or with high- risk populations (i.e., food service and food processing, health care, nursing homes, and schools) may have fewer options for accommodating vaccine exemptions, especially given the risk surrounding the efficacy of PPE measures in industries requiring constant exposure and close face-to- face 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 exemption 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-related 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. Employers may request and require employees to show proof of receipt of a COVID-19 vaccination. continued on the next page