EEOC Updates FAQs on COVID-19 Topics, Including Mandatory Vaccinations

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its FAQs about various equal employment opportunity laws and COVID-19. The guidance is available at:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

The FAQs address questions about COVID-19 vaccinations and the applicability of the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and Title VII.

The FAQs emphasize that the ADA requires employers to maintain the confidentiality of medical in­formation obtained from COVID-19 protocols, such as vaccination pre-screening or accommodation ques­tions. Employers should only grant access to this medi­cal information to: (1) supervisors and managers if it relates to necessary restrictions or accommodations, (2) first aid and safety personnel when needed, or (3) government officials investigating ADA compliance.

The FAQs explain that the vaccination itself is not a “medical examination” under the ADA. Nevertheless, pre-screening vaccination questions may constitute a “disability-related inquiry,” which is defined as a ques­tion likely to elicit answers about a disability. If an em­ployer’s pre-screening vaccination questions to an employee constitute a “disability-related inquiry,” the questions must be “job-related and consistent with business necessity.” This standard means that a school employer “would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Two exceptions to the “job-related and consistent with business necessity” requirement exist where: (1) the vaccine program is voluntary and therefore the em­ployee’s decision to answer pre-screening questions is voluntary; and (2) the 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 “job-related and business necessity” restriction does not apply to that third party’s pre-screening questions.

According to the FAQs, asking or requiring employees to prove receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA. But asking related questions, such as why an employee did not receive the vaccination, may qualify as a “medical inquiry” and is therefore permitted only when it is “job-related and consistent with business necessity.”

The EEOC also advises how employers mandating vaccinations should respond to employees who are not able to receive a vaccination due to a medical condition that qualifies as a disability. The employer must show that an unvaccinated employee poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others” to prevent the employee from working. Further, if a direct threat exists, the employer then must determine whether a reasonable accommodation without undue hardship can be provided. That work was previously performed remotely suggests an accommodation request for re­mote work may be “reasonable.” Nevertheless, remote work necessitated by the extraordinary situation with COVID-19 might not have resulted in the performance of a job’s essential functions and does not guarantee the reasonableness of an accommodation request for re­mote work in the future. Reasonable accommodation determinations must continue to be made on a case-by-case basis.