EEOC Releases Q-and-A Guidance Section on COVID-19 Vaccinations

December 17, 2020 (WASHINGTON INSIDER ALERT) -  On December 16, the Equal Employment Opportunity Commission (EEOC) updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws by adding a section “K.” The new section addresses questions on COVID-19 vaccinations and the applicability of equal employment opportunity laws. The previously released sections of the guidance (A-J) address issues concerning COVID-19-related (A) medical inquiries, (B) confidentiality of medical information, (C) hiring and onboarding issues, (D) reasonable accommodations, (E) harassment, (F) furloughs and layoffs, (G) return to work, (H) age discrimination, (I) caregiver and family responsibilities, and (J) pregnancy.

While we encourage members to review the full guidance, below are some important highlights.

Can an employer mandate that employees be vaccinated?

The EEOC addresses this issue in Section K(5), stating that,

• 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.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

Section K(4), however, notes that “Some COVID-19 vaccines may only be available to the public for the foreseeable future under [Emergency Use Authorization] granted by the [Food and Drug Administration], which is different than approval under FDA vaccine licensure.” Under EUA, the FDA has an obligation to “[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.” It is unclear how this provision would impact mandatory vaccination, particularly when administered by the employer.

Are pre-screening questions ADA medical inquiries?

The new section addresses important questions about ADA regulation of employers that administer vaccines to employees on a mandatory or volunteer basis, with a focus on pre-screening questions, which the EEOC regards as “inquiries likely to elicit information about a disability.”

Can employers require proof of vaccination?

Section K also states situations where an employer sends employees to a third-party provider to be vaccinated. The agency states, that while “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry . . . subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”

Vaccinations and GINA

As requiring employees to receive a vaccination or administering a vaccine to employees does not involve the use of genetic information to make employment decisions, GINA is not implicated when an employer administers or requires a COVID-19 vaccine. However, pre-screening questions may violate GINA if they seek genetic information, such as family members’ medical histories. Because certain COVID-19 vaccines utilize mRNA technology, some have questioned whether such vaccines modify a recipient’s genetic makeup and whether the requirement of such a vaccine would therefore violate GINA. The CDC has attested that mRNA COVID-19 vaccines do not interact with DNA in any way. Therefore, the requirement of mRNA vaccines is not in conflict with GINA.

While it is still unclear what screening checklists for contraindications will be provided with COVID-19 vaccinations, it is possible that pre-vaccination questions will include questions about genetic information.