Key Takeaways

• The EEOC has released guidance on COVID-19 vaccinations and the workplace

• The guidance covers how employer policies on vaccinations may interact with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act

• Labor contracts, collective rights, confidentiality, and privacy concerns will also impact employer vaccination policies and procedures

Distribution of the first COVID-19 vaccine doses has begun, but many experts posit that it could take six to nine months for the U.S. to reach “herd immunity” given the size and dispersal of the population and because the currently available vaccines require multiple doses per person.

Accordingly, as we transition into a new phase of the COVID-19 pandemic, employers will face complex decisions relating to employee vaccinations. Can and should employers mandate that employees obtain the vaccination? What happens if an employee refuses? What if an employee claims they cannot be vaccinated due to their religion or a medical condition?

The Equal Employment Opportunity Commission (EEOC) has released guidance that includes a questions-and-answers section on how employers’ COVID-19 vaccination policies interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

Should employers mandate COVID-19 vaccines?

Before diving into the legalities of an employer-mandated COVID-19 vaccination, the concept of mandating that employees obtain a vaccination warrants further exploration. On one hand, employers have a duty under laws such as the Occupational Safety and Health Act and under current Occupational Safety and Health Administration guidance to take steps to ensure the workplace is safe. Additionally, employers have operational concerns about preventing the spread of COVID-19 in the workplace, as it may be lead to workers’ compensation claims, entitlement to medical leave, loss of productivity, and potentially other liabilities. On the other hand, some employees are likely to respond negatively to a vaccination mandate, there is the potential that some employees will have negative reactions or develop side effects from the vaccination, and as further described below, the navigation of the legal waters in this area will undoubtedly be tricky.

Some employers may be attracted to a middle-of-the-road strategy based on the current approach many employers take to deal with the common flu. While vaccination for the common flu is often required for individuals working in health care industries, employers in other industries rarely require that an employee obtain a flu vaccination. Instead, many employers merely encourage employees to get the flu vaccination each year, and some even provide free onsite flu vaccinations to employees that can then conveniently get vaccination without having to take off work. For some employers, this strategy may be the path of least of resistance with the COVID-19 vaccine. However, other employers may decide to push forward with mandated vaccines.

“Medical examinations” and “disability-related inquiries”

The ADA limits the circumstances under which an employer may require a “medical examination” of an employee. Accordingly, a threshold question is whether a COVID-19 vaccination is a “medical examination.” The EEOC guidance answers “no,” because a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Since employers mandating vaccination are seeking to protect against the spread of COVID-19 (and not seeking information about an individual’s impairments or current health status), the vaccination is not a medical examination.

However, although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on “disability-related inquiries,” which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity,” except under two circumstances. These are:

1. If the employer has offered a vaccination to employees on a voluntary basis and it is the employee’s decision whether to answer the questions; or

2. If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.

The EEOC guidance goes on to state that asking an employee to show proof of receipt of a COVID-19 vaccination is not a “disability-related inquiry” on its face, but it may veer into one if the employer asks follow-up questions.

Employees that refuse COVID-19 vaccinations due to a disability

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.”  However, 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 that will undoubtedly 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, and may need to consider whether a telework option exists.

How do religious accommodations factor in?

Federal and many state laws also require employers to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Accordingly, employers will need to engage in this analysis if applicants or employees resist employer-mandated COVID-19 vaccinations due to a sincerely held religious belief. Similar to disability-based accommodation requests, one way to satisfy religious accommodation requests may be through a teleworking option.

The Genetic Information Nondiscrimination Act (GINA)

GINA is a rarely discussed federal law. Under GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

The EEOC guidance indicates that administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 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, just as with the ADA concerns discussed above, GINA could be triggered if the employee is asked pre-vaccination questions relating to genetic information (including family medical history). If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.

Other considerations

• Unionized Employer: Employers with a unionized workforce should check their collective bargaining agreement(s) to see if vaccinations are addressed anywhere. If not, and the employer seeks mandated vaccinations, it may need to bargain with the union over the issue.
• Collective Rights: Conceivably, employees resistant to employer-mandated COVID-19 vaccinations may engage in “concerted activity” for their “mutual aid or protection” under the National Labor Relations Act that constitutes protected activity. Accordingly, private sector employers should have this potential issue on their radar.
• Confidentiality: Employers are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.
• Privacy Concerns: Employers in the public sector as well as employers subject to certain state (e.g., California) and local laws should evaluate whether mandating a COVID-19 vaccination would infringe on any privacy-related rights.

We advise employers to work through the business and legal implications of any decision relating to COVID-19 vaccinations. Thereafter, employers should draft and implement applicable policies and train managers on how to identify when employment, labor, or human resources issues are present. Finally, employers should seek guidance from counsel to ensure compliance with state and federal employment and labor laws.

Goldberg Segalla has significant experience navigating the various federal and state laws that could be triggered by an employer mandated COVID-19 vaccination. If you or your team have any questions about the role of COVID-19 vaccinations in the workplace, please contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of our Employment and Labor practice