The federal EEOC (Equal Employment Opportunity Commission) recently issued guidance for U.S. employers on handling the requirement of COVID-19 vaccinations for their employees and other related medical inquiries. This advice on how to maintain a safe workplace while avoiding claims of discrimination has been added to the EEOC’s growing library of articles associated with the coronavirus.
As employers are well aware, the ADA (Americans with Disabilities Act) does not permit medical exams or disability-related questions until after the conditional offer and must be asked of all applicants for the same position. However, there are exceptions during a pandemic allowing employers to make limited inquiries as a matter of public health and safety. As employers begin to re-open their workplaces, it will be important to refer to the ADA’s guidance on the specific questions that employers are permitted to ask of their employees and job applicants. Mandatory pre-screening questions related to vaccinations must be job-related and consistent with business necessity if they are asked by the employer itself or a contractor since these would be considered disability-related inquiries. Conversely, voluntary responses to pre-screening questions and voluntary vaccinations provided by the employer do not pose an issue under the ADA.
As is often the answer from a legal standpoint, it depends. The basis of the employer’s business is a determining factor in this case. In order to make vaccinations mandatory, an employer must determine that the presence of an unvaccinated employee in the workplace would be a direct threat to others. In addition, medical, religious, and pregnancy exemptions must be honored, and employers have to consider what might be considered a reasonable accommodation for those who decline vaccinations on that basis. An assessment must be made by the employer and employee using the ADA interactive process to establish whether the proposed accommodation would sufficiently eliminate or diminish the risk presented by the unvaccinated employee. Adopting a mandatory vaccination program may be possible if employees receive the vaccine from a third party who is not under contract by the employer and provided that the accommodations process is followed.
For more information about handling employment-related COVID-19 issues, refer to the EEOC’s FAQ on this topic and consult with your attorney. In addition to the EEOC and ADA guidelines, this article was composed using additional resources, including articles published by The National Law Review, Seyfarth Shaw LLP, and Franczek P.C.