January 6, 2021

 

Equal Employment Opportunity Commission (EEOC)
Updated Employer Guidance Regarding COVID-19 Vaccination

Deciding to make the COVID-19 vaccination mandatory involves both legal and labor relations issues.  The EEOC has updated its technical assistance questions and answers to address COVID vaccinations.  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.  The published guidance issued can be found here in Section K – Vaccinations.

According to the EEOC:

  • Employers may choose to mandate COVID-19 vaccinations.
    • Any COVID-19 vaccination approved by the Food and Drug Administration (FDA) is not a medical examination under the Americans with Disabilities Act (ADA).
    • An employer’s administration of the vaccination or requirement that employees provide proof of the vaccination does not implicate the Genetic Information Nondiscrimination Act (GINA).
      • Prescreening questions that solicit genetic information would violate GINA; an employer cannot ask them
    • Pre-screening questions for the vaccination, which solicit information about a disability or health condition, may implicate the ADA’s banning of disability related inquiries.
      • If mandating the vaccine, employers must be able to show that the disability related screening questions are job related and consistent with business necessity.
        • To meet this standard, the employer would need to have a reasonable belief based on objective evidence, that an employee who does not answer the questions, therefore not receiving a vaccination, would pose a direct threat to the health or safety of themselves or others.
      • Employers are not required to meet the job related, consistent with business necessity standard, if:
        • The employer offers the vaccination on a voluntary basis; or
        • the employee receives the vaccination from a third party that does not have a contract with the employer.
  • Employers can require proof of a COVID vaccination.
    • This is not a disability-related inquiry.
    • Employer should warn the employee to exclude the following from the proof of vaccination:
      • Any medical information to avoid implicating the ADA; and
      • Any genetic information that has been gathered to avoid implicating GINA.
  • Employers may have to accommodate an employee who cannot receive a mandatory vaccine because of a disability.
    • Employer can only terminate an employee if it can be shown the unvaccinated employee would pose a direct threat because of significant risk of harm to the health and safety of the individual or others that cannot be eliminated or reduced by an accommodation without due hardship.
    • Accommodation may include telework or leave.
  • Medical information cannot be kept in an employee personnel file.
  • Employers must reasonably accommodate religious beliefs as long as doing so does not create an undue hardship.
    • If an employee cannot be vaccinated because of a sincerely held religious belief, practice, or observance, and no reasonable accommodation is possible, it would be lawful for the employer to exclude the employee from the workplace.
      • This does not mean the employer can terminate the employee.
    • Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
    • Employers should assume that an employee’s request for religious belief accommodation is based on a sincerely held religious belief.
      • If employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer would be justified in requesting additional supporting information.
  • Supervisor training is vital to protect against discrimination and retaliation.
    • Managers and supervisors should be reminded that it is unlawful to:
      • Disclose that an employee is receiving a reasonable accommodation.
      • Retaliate against an employee for requesting an accommodation.

We recommend you seek legal advice regarding this and any issue that involves legal and labor relation issues. 

#teamkoppinger keeping you up to date
#covid #vaccines

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