EEOC Issues New COVID-19 Vaccination-Related Guidance

By Worklaw Network

December 16, 2020

From Gregory P. Proseus, Chief of Staff to Vice Chair Keith E. Sonderling, U.S. Equal Employment Opportunity Commission:

Today, the EEOC released COVID-19 vaccination-related guidance, including information about employer-mandated vaccinations for employees.  The guidance can be found in the EEOC’s existing resource on COVID: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).
 
The new COVID-19 vaccination-related guidance answers the following questions:
 
ADA and Title VII Issues Regarding Mandatory Vaccinations
•    If an employer requires vaccinations when they are available, how should the employer respond to an employee who indicates that s/he is unable to receive a COVID-19 vaccination because of a disability?
•    If an employer requires vaccinations when they are available, how should the employer respond to an employee who indicates that s/he is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
•    What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
 
ADA and Vaccinations
•    For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine by an employer (or a third party with whom the employer contracts to administer a vaccine) to an employee a “medical examination” for purposes of the ADA?
•    According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks such screening questions, are these questions subject to the ADA standards for disability-related inquiries?  
•    Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
 
Title II of the Genetic Information Nondiscrimination Act (GINA) and COVID-19 Vaccinations
•    Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
•    Does asking an employee pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA?
 
Vice Chair Sonderling encourages you to review and share the new COVID-19 vaccination-related guidance.