On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updated and expanded guidance addressing questions related to the COVID-19 pandemic that arise under the Federal Equal Employment Opportunity Laws. The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” includes new guidance on the implications of the forthcoming COVID-19 vaccines on a number of federal laws.
The EEOC guidance provides a high-level overview of some of the basic concerns confronting employers as they attempt to navigate the intersection of vaccine necessity and the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), and Title VII. While the EEOC asserts that “[t]he EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions,” it also makes clear that employers will have to undertake careful efforts to comply with these statutes as they also seek to comply with public health authority instruction.
As a threshold matter, the EEOC confirmed, as expected, that mandatory vaccination policies generally will be permissible under federal law. However, such policies will be required to allow exceptions for disability and religious accommodations. Such exceptions will only allow for employee removal from the workplace where an accommodation will present an undue burden. Employers should not assume the risk of COVID-19 transmission or illness automatically constitutes an undue burden. Further, the EEOC guidance intimates that employers should be prepared to consider creative accommodations. The EEOC conspicuously states that an undue burden may warrant employee removal but not employee termination. This comment suggests employers will need to conduct a highly individualized analysis in assessing undue burden and consider creative solutions, such as an ADA leave of absence in lieu of termination, while vaccine uptake proceeds.
The core focus of the EEOC guidance beyond the general mandatory vaccine question is the proper method of employer-administered or employer-controlled mandatory vaccination programs. As a threshold matter, the EEOC makes clear that vendor-administered mandatory vaccination programs will be assessed in the same manner as employer-administered mandatory vaccination programs.
Beyond that issue, the EEOC guidance makes clear that employers will face one new critical challenge—making lawful disability and genetic inquiries to facilitate safe vaccination. The COVID-19 vaccine and inquiries about vaccination status do not constitute ADA-protected medical examinations or GINA-protected inquiries. That said, the pre-screening questions for a vaccine likely do qualify for protection under the ADA and may qualify for protection under GINA depending on the questions specifically asked. In the short run, the direct threat posed by COVID-19 should authorize these inquiries. Nonetheless, employers will need to work closely with counsel to evaluate pre-screening questions for compliance concerns as well as to track the continued viability of the direct threat exception as the pandemic subsides.