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We recently provided analysis and practical guidance on mandatory vaccination policies, accommodations, and other considerations for employers as vaccines roll out across the country. The U.S. Equal Employment Opportunity Commission (EEOC) subsequently issued preliminary guidelines for employers on COVID-19 vaccination policies in their updated Technical Assistance Questions and Answers on COVID-19 and various EEO laws.[1]
Here are our key takeaways from these guidelines:
Mandatory Vaccinations Are Not a Medical Examination Subject to the ADA, But Pre-Vaccination Screening Questions Can Be
The EEOC drew a distinction between the administration of vaccines by an employer or a third-party contractor and any pre-vaccination screening questions. Notably, the EEOC determined that vaccine administration is not a medical examination or other disability-related inquiry that would trigger obligations under the Americans with
Key Points
Employers may mandate employee COVID-19 vaccination programs, subject to certain exemptions.
When requiring employee vaccinations, employers should consider the fact that these COVID-19 vaccines are currently approved under the FDA s Emergency Use Authorization (EUA).
Mandatory employer COVID-19 vaccination programs must include religious and disability-related employee exemptions.
INTRODUCTION
On Dec. 11, 2020, the Food and Drug Administration granted Emergency Use Authorization (EUA) for Pfizer s COVID-19 vaccine. Yesterday, the FDA advisory panel voted (20 in favor, one abstention) to recommend the Moderna COVID-19 vaccine for EUA.
On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers (Guidance) to specifically address employer COVID-19 vaccine programs. The new Guidance reiterates the medical/disability condition and sincerely-held religious belief exemptions that the EEOC recognizes for other
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As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “
The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act (“GINA”).
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An issue of key concern to employers now that vaccines are being made available to inoculate against COVID-19 is whether they should require employees to be vaccinated. On Wednesday, December 16, the federal Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers to guide the application of various laws to COVID-19 vaccination requirements. While this EEOC guidance provides welcome clarification to employers, determination of the appropriate path forward requires employers to perform a multi-layer analysis.
The EEOC guidance indicates that employers can require their workers to get a COVID-19 vaccine without violating key federal anti-discrimination laws so long as they can demonstrate that employees would create “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
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As the approvals of the COVID-19 vaccines are being announced, employers are faced with many questions about how to handle vaccine-related issues in the workplace. This week, the EEOC updated its
Technical Assistance Questions and Answers to include questions regarding the COVID-19 vaccine and the applicability of various federal employment laws including the ADA, the Rehabilitation Act, GINA, and Title VII. Below are some highlights:
While the vaccination itself is not considered a medical examination under the ADA, pre-screening vaccination questions, which must accompany such vaccinations, likely are. That is because these pre-screening questions are inquiries likely to elicit information about a disability. As such, if an employer administers vaccines to its employees, these pre-screening questions must be “job-related and consistent with business necessity.” The EEOC addressed several scenarios: