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The U.S. Equal Employment Opportunity Commission (EEOC) today issued an updated version of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The guidance features a new section explaining how COVID-19 vaccination of employees interacts with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and Genetic Information Nondiscrimination Act (GINA). Here are some edited excerpts. For the full text, refer to Section K in the document.
Q: Is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA?
A: . The vaccination itself is not a medical examination. As the Commission explains in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”
Q: Health care providers are advised to ask certain questions before administering a vaccine to ensure there is no medical reason to prohibit it. If the employer requires an employee to receive the vaccination and asks screening questions, are these questions subject to ADA standards for disability-related inquiries?
A: Yes. Pre-vaccination medical screening questions that are likely to elicit information about a disability would be considered “disability-related” under the ADA. The employer must show that these screening inquiries are job-related and consistent with business necessity, and that they have have a reasonable belief that an employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of her or himself or others. Requiring an employee to show proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry.
Q: What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
A: If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under EEO laws or other federal, state and local authorities.
Q: Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA?
A: Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members. It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations. Under 29 C.F.R. § 1635.3(c), if pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.
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