ADA and Vaccinations
K.1. For any COVID-19 vaccine that has been
approved or authorized by the Food and Drug Administration (FDA), 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? (12/16/20)
No. The vaccination itself is not a medical
examination. As the Commission explained 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.” Examples include “vision tests; blood, urine, and breath
analyses; blood pressure screening and cholesterol testing; and diagnostic
procedures, such as x-rays, CAT scans, and MRIs.” If a vaccine is administered
to an employee by an employer for protection against contracting COVID-19, the
employer is not seeking information about an individual’s impairments or
current health status and, therefore, it is not a medical examination.
Although the administration of a vaccination is not
a medical examination, pre-screening vaccination questions may implicate the
ADA’s provision on disability-related inquiries, which are inquiries likely to
elicit information about a disability. If the employer administers the vaccine,
it must show that such pre-screening questions it asks employees are
“job-related and consistent with business necessity.” See Question K.2.
K.2. According to the CDC, health care providers
should ask certain questions before administering a vaccine to ensure that
there is no medical reason that would prevent the person from receiving the
vaccination. If the employer requires an employee to receive the vaccination
from the employer (or a third party with whom the employer contracts to
administer a vaccine) and asks these screening questions, are these questions
subject to the ADA standards for disability-related inquiries? (12/16/20)
Yes. Pre-vaccination medical screening
questions are likely to elicit information about a disability. This means
that such questions, if asked by the employer or a contractor on the employer’s
behalf, are “disability-related” under the ADA. Thus, if the employer
requires an employee to receive the vaccination, administered by the employer,
the employer must show that these disability-related screening inquiries are
“job-related and consistent with business necessity.” To meet this
standard, an employer would need to have a reasonable belief, based on
objective evidence, that an employee who does not answer the questions and,
therefore, does not receive a vaccination, will pose a direct threat to the
health or safety of her or himself or others. See Question K.5. below for a discussion
of direct threat.
By contrast, there are two circumstances in which
disability-related screening questions can be asked without needing to satisfy
the “job-related and consistent with business necessity” requirement.
First, if an employer has offered a vaccination to employees on a voluntary
basis (i.e. employees choose whether to be vaccinated), the ADA requires that
the employee’s decision to answer pre-screening, disability-related questions
also must be voluntary. 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d). If an employee
chooses not to answer these questions, the employer may decline to administer
the vaccine but may not retaliate against, intimidate, or threaten the employee
for refusing to answer any questions. Second, if an employee receives an
employer-required vaccination from a third party that does not have a contract with
the employer, such as a pharmacy or other health care provider, the ADA
“job-related and consistent with business necessity” restrictions on
disability-related inquiries would not apply to the pre-vaccination medical
screening questions.
The ADA requires employers to keep any employee
medical information obtained in the course of the vaccination program confidential.
K.3. Is asking or requiring an employee to show
proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)
No. There are many reasons that may explain
why an employee has not been vaccinated, which may or may not be
disability-related. Simply requesting proof of receipt of a COVID-19
vaccination is not likely to elicit information about a disability and,
therefore, is not a disability-related inquiry. However, subsequent
employer questions, such as asking why an individual did not receive a
vaccination, may elicit information about a disability and would be subject to
the pertinent ADA standard that they be “job-related and consistent with
business necessity.” If an employer requires employees to provide proof
that they have received a COVID-19 vaccination from a pharmacy or their own
health care provider, the employer may want to warn the employee not to provide
any medical information as part of the proof in order to avoid implicating the
ADA.
ADA and Title VII Issues Regarding Mandatory
Vaccinations
K.4. Where can employers learn more about Emergency
Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)
Some COVID-19 vaccines may only be available to the
public for the foreseeable future under EUA granted by the FDA, which is
different than approval under FDA vaccine licensure. The FDA has an obligation to:
[E]nsure that recipients of the vaccine under an
EUA are informed, to the extent practicable under the applicable circumstances,
that FDA has authorized the emergency use of the vaccine, of the known and
potential benefits and risks, the extent to which such benefits and risks are
unknown, that they have the option to accept or refuse the vaccine, and of any
available alternatives to the product.
The FDA says that this information is typically
conveyed in a patient fact sheet that is provided at the time of the vaccine
administration and that it posts the fact sheets on its website. More
information about EUA vaccines is available on the FDA’s EUA page.
K.5. If an employer requires vaccinations when they
are available, how should it respond to an employee who indicates that he or
she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)
The ADA allows an employer to have a qualification standard that includes “a
requirement that an individual shall not pose a direct threat to the health or
safety of individuals in the workplace.” However, if a safety-based
qualification standard, such as a vaccination requirement, screens out or tends
to screen out an individual with a disability, the employer must show that an
unvaccinated employee would pose a direct threat due to a “significant risk of
substantial harm to the health or safety of the individual or others that
cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should
conduct an individualized
assessment of four
factors in determining whether a direct threat exists: the duration of
the risk; the nature and severity of the potential harm; the likelihood that the
potential harm will occur; and the imminence of the potential harm. A
conclusion that there is a direct threat would include a determination that an
unvaccinated individual will expose others to the virus at the worksite.
If an employer determines that an individual who cannot be vaccinated due
to disability poses a direct threat at the worksite, the employer cannot
exclude the employee from the workplace—or take any other action—unless there is no way to
provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this
risk so the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced
to an acceptable level, the employer can exclude the employee from
physically entering the workplace, but this does not mean the employer may automatically terminate the
worker. Employers will need to determine if any other rights apply
under the EEO laws or other federal, state, and local authorities. For
example, if an employer excludes an employee based on an inability to
accommodate a request to be exempt from a vaccination requirement, the employee
may be entitled to accommodations such as performing the current position
remotely. This is the same step that employers take when physically excluding
employees from a worksite due to a current COVID-19 diagnosis or symptoms; some
workers may be entitled to telework or, if not, may be eligible to take leave
under the Families First Coronavirus Response Act, under the FMLA, or under the
employer’s policies. See also Section J, EEO rights relating to pregnancy.
Managers and supervisors responsible for
communicating with employees about compliance with the employer’s vaccination
requirement should know how to recognize an accommodation request from an
employee with a disability and know to whom the request should be referred for
consideration. Employers and employees should engage in a flexible,
interactive process to identify workplace accommodation options that do not
constitute an undue hardship (significant difficulty or expense). This
process should include determining whether it is necessary to obtain supporting
documentation about the employee’s disability and considering the possible
options for accommodation given the nature of the workforce and the employee’s
position. The
prevalence in the workplace of employees who already have received a COVID-19
vaccination and the amount of contact with others, whose vaccination status
could be unknown, may impact the undue hardship consideration. In
discussing accommodation requests, employers and employees also may find it
helpful to consult the Job Accommodation Network (JAN) website as a resource
for different types of accommodations, www.askjan.org. JAN’s materials specific
to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Employers may rely on CDC recommendations when
deciding whether an effective accommodation that would not pose an undue
hardship is available, but as explained further in Question K.7.,
there may be situations where an accommodation is not possible. When an
employer makes this decision, the facts about particular job duties and
workplaces may be relevant. Employers also should consult applicable
Occupational Safety and Health Administration standards and guidance.
Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
Managers and supervisors are reminded that it is
unlawful to disclose that an employee is receiving a reasonable accommodation or
retaliate against an employee for requesting an
accommodation.
K.6. If an employer requires vaccinations when they
are available, how should it respond to an employee who indicates that he or
she is unable to receive a COVID-19 vaccination because of a sincerely held
religious practice or belief? (12/16/20)
Once an employer is on notice that an employee’s
sincerely held religious belief, practice, or observance prevents the employee
from receiving the vaccination, the employer must provide a reasonable
accommodation for the religious belief, practice, or observance unless it would
pose an undue hardship under Title VII of the Civil Rights Act. Courts
have defined “undue hardship” under Title VII as having more than a de
minimis cost or burden on the employer. EEOC guidance explains that
because the definition of religion is broad and protects beliefs, practices,
and observances with which the employer may be unfamiliar, the employer should
ordinarily assume that an employee’s request for religious accommodation is
based on a sincerely held religious belief. If, however, an employee
requests a religious accommodation, and an employer has an objective basis for
questioning either the religious nature or the sincerity of a particular
belief, practice, or observance, the employer would be justified in requesting
additional supporting information.
K.7. 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? (12/16/20)
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
the EEO laws or other federal, state, and local authorities.
Title II of the Genetic Information
Nondiscrimination Act (GINA) and Vaccinations
K.8. Is Title II of GINA implicated when an
employer administers a COVID-19 vaccine to employees or requires employees to
provide proof that they have received a COVID-19 vaccination? (12/16/20)
No. Administering a COVID-19 vaccination to
employees or requiring employees to provide proof that they have received a
COVID-19 vaccination does not implicate Title II of GINA because it does not
involve the use of genetic information to make employment decisions, or the
acquisition or disclosure of “genetic information” as defined by the statute.
This includes vaccinations that use messenger RNA (mRNA) technology, which will
be discussed more below. As noted in Question K.9. however, if
administration of the vaccine requires pre-screening questions that ask about
genetic information, the inquiries seeking genetic information, such as family
members’ medical histories, may violate GINA.
Under Title II of GINA, employers may not (1) use
genetic information to make decisions related to the terms, conditions, and
privileges of employment, (2) acquire genetic information except in six narrow
circumstances, or (3) disclose genetic information except in six narrow
circumstances.
Certain COVID-19 vaccines use mRNA technology. This
raises questions about genetics and, specifically, about whether such vaccines
modify a recipient’s genetic makeup and, therefore, whether requiring an
employee to get the vaccine as a condition of employment is an unlawful use of
genetic information. The CDC has explained that the mRNA COVID-19
vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus
of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for
a detailed discussion about how mRNA vaccines work). Thus, requiring
employees to get the vaccine, whether it uses mRNA technology or not, does not
violate GINA’s prohibitions on using, acquiring, or disclosing genetic
information.
K.9. Does asking an employee the pre-vaccination
screening questions before administering a COVID-19 vaccine implicate Title II
of GINA? (12/16/20)
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.
GINA defines “genetic information” to mean:
Information about an individual’s genetic tests;
Information about the genetic tests of a family
member;
Information about the manifestation of disease or
disorder in a family member (i.e., family medical history);
Information about requests for, or receipt of,
genetic services or the participation in clinical research that includes
genetic services by the an individual or a family member of the individual; and
Genetic information about a fetus carried by an
individual or family member or of an embryo legally held by an individual or
family member using assisted reproductive technology.
29 C.F.R. § 1635.3(c). If the 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.
GINA does not prohibit an individual employee’s own
health care provider from asking questions about genetic information, but it
does prohibit an employer or a doctor working for the employer from asking
questions about genetic information. If an employer requires employees to
provide proof that they have received a COVID-19 vaccination from their own
health care provider, the employer may want to warn the employee not to provide
genetic information as part of the proof. As long as this warning is
provided, any genetic information the employer receives in response to its
request for proof of vaccination will be considered inadvertent and therefore
not unlawful under GINA. See 29 CFR 1635.8(b)(1)(i) for model
language that can be used for this warning.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.