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EEOC Issues New Guidance on COVID-19 Vaccines

On December 16, 2020, the EEOC updated its on the COVID-19 pandemic to address the two vaccines Emergency Use Authorization (EUA) by the FDA. The EEOC had previously in its 2009 guide to pandemic preparedness that employers could require employees to get the flu vaccine, but it had not yet addressed the COVID-19 vaccine before. The new FAQs largely restate and expand on the EEOC’s 2009 guidance. Here are some important highlights for employers:

• Employers are permitted to require employees to receive a COVID-19 vaccine as long as the employer’s policies comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and Title II of the Genetic Information Nondiscrimination Act (GINA).
• If an employee objects to receiving a COVID-19 vaccine because of a disability or sincerely held religious belief, the employer must engage in the interactive process and attempt to provide reasonable accommodations for that employee. Employers need not, however, make accommodations that create an undue hardship. If no reasonable accommodation is available, the employer may exclude the employee from the workplace, but may not automatically terminate the employee.
• While a COVID-19 vaccination itself is not a medical examination or inquiry, the EEOC noted that pre-screening questions asked to patients before a vaccine is administered are likely to elicit information about a disability. Therefore, employers that require vaccines or administer vaccines in-house (such as healthcare employers or employers that create onsite clinics for vaccine administration) must ensure that such screenings are “job-related and consistent with business necessity.”
• Pre-screening questions posed to an employee may also implicate GINA if they elicit information about an employee’s genetic history. Employers administering vaccines to employees—either directly or through a healthcare provider hired by the employer—must ensure that any inquiries do not include questions about employees’ genetic information (such as questions about family medical history).
• Requiring employees to provide proof of a COVID-19 vaccine is not a disability-related inquiry. However, any subsequent questions posed to an employee, such as asking an employee why he or she did not receive a vaccine, may be likely to elicit information about a disability, and thus must be job-related and consistent with business necessity.

For additional information about the COVID-19 vaccine, please see IMA’s COVID-19 Vaccine FAQs. IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.