By Jeremy S. Cole, JD
As of this writing, three COVID-19 vaccines have received FDA emergency use authorization and distribution is underway around the country. President Biden's goal is to have the vaccine generally available to everyone in May. As employers seek to reopen their workplaces, many wonder whether they can require employees to be vaccinated as a condition of returning to the office. Per Equal Employment Opportunity Commission (EEOC) guidance on the issue, employers seeking to mandate a COVID-19 vaccine must be careful not to violate the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA), all of which apply to most employers with 15 or more employees. Additional state and local laws could extend the requirements of these acts to smaller employers or place further requirements on employers.
While the ADA limits the circumstances under which an employer may require a “medical examination” of an employee, the EEOC’s guidance suggests that the COVID-19 vaccine is not a medical examination because it does not seek information about an individual’s impairments or current health status. However, if the employer administers the vaccine, pre-vaccination screening questions may implicate the ADA’s provision concerning “disability-related inquiries.” The ADA requires employers who make “disability-related inquiries” to show that those inquiries are “job-related and consistent with business necessity.” While the EEOC does not view requiring an employee to provide proof of vaccination to be a “disability-related inquiry,” follow-up questions by the employer could be “disability-related inquiries.”
The ADA further prohibits employers from discriminating against employees with qualifying disabilities, and requires employers to reasonably accommodate employees with qualifying disabilities. In the COVID-19 vaccination context, this may require employers to reasonably accommodate employees with qualifying disabilities that prevent them from getting the vaccine. One exception to this general rule is the ADA’s “direct threat” analysis. The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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.” This requires the employer to engage in a multifactor analysis to assess the risk level posed by the employee that will depend on the facts relating to the employer and the employee.
If the employer determines there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace but may need to consider whether accommodations such as remote work are a possibility.
Title VII and many state laws require employers to reasonably accommodate employees’ religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. Accordingly, employers may be required to reasonably accommodate employees or applicants that resist employer-mandated COVID-19 vaccinations due to a sincerely held religious belief, such as through permitting the resisting employee to work remotely.
GINA, a rarely invoked federal anti-discrimination law, prohibits employers from discriminating based on genetic information, acquiring genetic information except in six narrow circumstances, and disclosing genetic information except in six narrow circumstances.
The EEOC’s guidance indicates that administering the COVID-19 vaccine or requiring employees to provide proof of vaccination does not implicate GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. However, GINA could be triggered if the employee is asked pre-vaccination questions relating to genetic information (including medical history).
Whether or not an employer should choose to mandate the vaccine is a complicated decision. Employers are incentivized and even legally required to take steps to ensure a safe workplace. However, employees could respond negatively to vaccine requirements, or could miss time due to negative reactions from the vaccine. If an employer chooses to mandate the vaccine, it should take care not to violate the legal requirements of the ADA, Title VII, and GINA, as well as any applicable state or local laws.
Jeremy S. Cole, JD, is a labor and employment attorney at Goldberg Segalla in Princeton, N.J. He can be reached at firstname.lastname@example.org.
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