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Client Alert: Should Your Business Require COVID-19 Vaccination?

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In recent weeks, the Food and Drug Administration has authorized two COVID-19 vaccines for emergency use. Now is the time to begin preparing for vaccine-related issues in your workforce.

Throughout 2020, the US Equal Employment Opportunity Commission (“EEOC”) has updated its pandemic preparedness guide, which advises employers about the applicability of certain equal employment opportunity (“EEO”) laws within the context of issues related to COVID-19.

On December 16, 2020, the EEOC updated the guide with new commentary about vaccination-related issues – including, for the first time, new commentary about the applicability of the Genetic Information Nondiscrimination Act (“GINA”). Although we encourage you to review the guide in full as you begin to prepare to field vaccination-related questions in your workforce, below are several key highlights:

  1. Administration of a COVID-19 vaccine (whether by employers or third parties engaged by employers) is not a “medical examination” for the purposes of the Americans with Disabilities Act (“ADA”). Under the ADA, employers cannot require a medical examination unless it is “job-related and consistent with business necessity.” But, notwithstanding the EEOC’s clarification that vaccines are not medical examinations, it remains possible that vaccination-related questions could constitute disability-related medical examinations. In that instance, employers must be able to show that the questions are job related and consistent with business necessity.

  2. Requesting proof that an employee has received a COVID-19 vaccine does not constitute a disability-related inquiry prohibited by the ADA. Because requiring proof of vaccination is unlikely to elicit information about a disability, the EEOC advises that such a requirement is unlikely to implicate the ADA. However, it remains possible that certain subsequent questions, such as asking why an employee has not received a vaccine, could elicit information about a disability. Here again, employers must be able to show that such questions are job related and consistent with business necessity.

  3. Employers requiring vaccination in their workforces must be prepared to accommodate employees who cannot receive a vaccine to the extent required by applicable EEO laws. The EEOC advises that employers may adopt a vaccination requirement as a part of their workplace qualification standards. Nevertheless, to differing extents, the ADA and Title VII of the Civil Rights Act of 1964 (“Title VII”) may require employers to accommodate an employee who is unable to receive a COVID-19 vaccine on account of disability-related or religious reasons. The degree to which accommodation is required, if at all, is a fact-intensive inquiry.

    In the event that an employee makes an accommodation request, or if there is reason to believe an employee may need accommodation, employers should consult with legal advisors to mitigate the risk of litigation. Likewise, employers intending to mandate vaccination should consult with legal advisors, as mandatory vaccination may implicate a range of legal considerations beyond the federal EEO laws.

  4. GINA is not implicated by administration of a COVID-19 vaccine (whether by employers or third parties engaged by employers) or by requiring proof of vaccination. In general, GINA prohibits the use, acquisition, and disclosure of “genetic information” – a term which includes not only information about an employee’s genetic tests, but also genetic tests of family members and some family medical history. The EEOC advises that vaccine administration does not itself constitute the use of genetic information to make employment decisions or the acquisition or disclosure of genetic information. Likewise, because the Centers for Disease Control (“CDC”) has concluded that mRNA technology does not modify a vaccine recipient’s genetic makeup, the EEOC advises that requiring proof of vaccination or mandating vaccination, even where an mRNA vaccine is involved, does not violate GINA’s prohibitions.

  5. GINA may be implicated by pre-vaccination screening questions. Although it is not yet clear what COVID-19 vaccine screening checklists will contain, certain screening questions may elicit information about an employee’s genetic information. For that reason, employers may wish to request proof of vaccination or engage a third party to administer the vaccination at the worksite in lieu of conducting vaccine administration themselves.

We Can Help You

We have been at the forefront of dealing with issues related to COVID-19. Please contact us if you would like to discuss your specific questions related to COVID-19 vaccination or any other compensation or employment matters impacted by COVID-19, or if we can otherwise be of assistance.

COVID-19 Resources

We recommend you evaluate the following pandemic-related business and legal considerations that we have been discussing with our clients:

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