This morning, the EEOC finally updated its Technical
Assistance Guidance for the first time since December to address the new CDC
guidelines about masking and vaccinations. Happily, it is consistent with
the prior guidance from December. It also provides examples of how to
reasonably accommodate those unvaccinated employees under the ADA and Title
VII. Employers may require proof of vaccination, should be prepared to
reasonably accommodate employees who cannot get vaccinated (by permitting them,
for instance, to wear masks, social distance, telework, relocate work space,
etc.) and can provide incentives to employees who get vaccinated as long as the
employer remembers that an employee’s vaccination status remains confidential
under the ADA. In short, the EEOC’s press
release explained the following key points:
·
Federal EEO laws do not prevent an employer from
requiring all employees physically entering the workplace to be vaccinated for
COVID-19, so long as employers comply with the reasonable accommodation
provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other
EEO considerations. Other laws, not in EEOC’s jurisdiction, may place
additional restrictions on employers. From an EEO perspective, employers
should keep in mind that because some individuals or demographic groups may
face greater barriers to receiving a COVID-19 vaccination than others, some
employees may be more likely to be negatively impacted by a vaccination requirement.
·
Federal EEO laws do not prevent or limit
employers from offering incentives to employees to voluntarily provide
documentation or other confirmation of vaccination obtained from a third party
(not the employer) in the community, such as a pharmacy, personal health care
provider, or public clinic. If employers choose to obtain vaccination
information from their employees, employers must keep vaccination information
confidential pursuant to the ADA.
·
Employers that are administering vaccines to
their employees may offer incentives for employees to be vaccinated, as long as
the incentives are not coercive. Because vaccinations require employees to
answer pre-vaccination disability-related screening questions, a very large
incentive could make employees feel pressured to disclose protected medical
information.
·
Employers may provide employees and their family
members with information to educate them about COVID-19 vaccines and raise
awareness about the benefits of vaccination. The technical assistance highlights
federal government resources available to those seeking more information about
how to get vaccinated.
The updated Q&As on
the vaccine and return to work protocols are as follows:
COVID-19 Vaccinations: EEO
Overview
K.1. Under the ADA,
Title VII, and other federal employment nondiscrimination laws, may an employer
require all employees physically entering the workplace to be vaccinated for
COVID-19? (5/28/21)
The federal EEO laws do not prevent
an employer from requiring all employees physically entering the workplace to
be vaccinated for COVID-19, subject to the reasonable
accommodation provisions of Title VII and the ADA and other EEO considerations
discussed below. These principles apply if an employee gets the
vaccine in the community or from the employer.
In some circumstances, Title VII
and the ADA require an employer to provide reasonable accommodations for
employees who, because of a disability or a sincerely held religious belief,
practice, or observance, do not get vaccinated for COVID-19, unless providing
an accommodation would pose an undue hardship on the operation of the
employer’s business. The analysis for undue hardship depends on whether
the accommodation is for a disability (including pregnancy-related conditions
that constitute a disability) (see K.6) or for religion (see K.12).
As with any employment policy,
employers that have a vaccine requirement may need to respond to allegations
that the requirement has a disparate impact on—or disproportionately
excludes—employees based on their race, color, religion, sex, or national
origin under Title VII (or age under the Age Discrimination in Employment Act
(40+)). Employers should keep in mind that because some individuals or
demographic groups may face greater barriers to receiving a COVID-19
vaccination than others, some employees may be more likely to be negatively
impacted by a vaccination requirement.
It would also be unlawful to apply
a vaccination requirement to employees in a way that treats employees
differently based on disability, race, color, religion, sex (including
pregnancy, sexual orientation and gender identity), national origin, age, or
genetic information, unless there is a legitimate non-discriminatory reason.
K.2. What are
some examples of reasonable accommodations or modifications that employers may
have to provide to employees who do not get vaccinated due to disability;
religious beliefs, practices, or observance; or pregnancy? (5/28/21)
An employee who does not get
vaccinated due to a disability (covered by the ADA) or a sincerely held
religious belief, practice, or observance (covered by Title VII) may be
entitled to a reasonable accommodation that does not pose an undue hardship on
the operation of the employer’s business. For example, as a reasonable
accommodation, an unvaccinated employee entering the workplace might wear a
face mask, work at a social distance from coworkers or non-employees, work a
modified shift, get periodic tests for COVID-19, be given the opportunity to
telework, or finally, accept a reassignment.
Employees who are not vaccinated
because of pregnancy may be entitled (under Title VII) to adjustments to keep
working, if the employer makes modifications or exceptions for other
employees. These modifications may be the same as the accommodations made
for an employee based on disability or religion.
K.3. How can employers
encourage employees and their family members to be vaccinated without violating
the EEO laws, especially the ADA and GINA? (5/28/21)
Employers may provide employees and
their family members with information to educate them about COVID-19 vaccines,
raise awareness about the benefits of vaccination, and address common questions
and concerns. Also, under certain circumstances employers may offer
incentives to employees who receive COVID-19 vaccines, as discussed in K.16
– K. 21. As of May 2021, the federal government is providing vaccines
at no cost to everyone ages 12 and older.
There are many resources available
to employees seeking more information about how to get vaccinated:
· The
federal government’s online vaccines.gov site can identify vaccination sites
anywhere in the country (or https://www.vacunas.gov for
Spanish). Individuals also can text their zip code to “GETVAX” (438829) –
or “VACUNA” (822862) for Spanish – to find three vaccination locations near
them.
· CDC’s
website offers a link to a listing of local health departments, which can provide
more information about local vaccination efforts.
· In
addition, the CDC offers background
information for employers about workplace vaccination programs. The CDC
provides a complete communication “tool kit” for employers to use with their
workforce to educate people about getting the COVID-19 vaccine. (Although
originally written for essential workers, it is useful for all
workers.) See CDC’s
Essential Workers COVID-19 Toolkit. Employers should provide the
contact information of a management representative for employees who need to
request a reasonable accommodation for a disability or religious belief,
practice, or observance or to ensure nondiscrimination for an employee who is
pregnant.
· Some
employees may not have reliable access to the internet to identify nearby
vaccination locations or may speak no or limited English and find it difficult
to make an appointment for a vaccine over the phone. The CDC operates a
toll-free telephone line that can provide assistance in many languages for
individuals seeking more information about vaccinations: 800-232-4636; TTY
888-232-6348.
· Some
employees also may require assistance with transportation to vaccination sites.
Employers may gather and disseminate information to their employees on low-cost
and no-cost transportation resources available in their community serving
vaccination sites and offer time-off for vaccination, particularly if
transportation is not readily available outside regular work hours.
General
K.4. Is information about
an employee’s COVID-19 vaccination confidential medical information under the
ADA? (5/28/21)
Yes. The ADA requires an
employer to maintain the confidentiality of employee medical information, such
as documentation or other confirmation of COVID-19 vaccination. This ADA
confidentiality requirement applies regardless of where the employee gets the
vaccination. Although the EEO laws themselves do not prevent employers
from requiring employees to bring in documentation or other confirmation of
vaccination, this information, like all medical information, must be kept
confidential and stored separately from the employee’s personnel files under
the ADA.
Mandatory Employer Vaccination
Programs
K.5. Under the ADA, may an
employer require a COVID-19 vaccination for all employees entering the
workplace, even though it knows that some employees may not get a vaccine
because of a disability? (12/16/20, updated 5/28/21)
Yes, provided certain requirements
are met. Under the ADA, an employer may require all employees to meet a
qualification standard that is job-related and consistent with business
necessity, such as a safety-related standard requiring COVID-19
vaccination. However, if a particular employee cannot meet such a
safety-related qualification standard because of a disability, the employer may
not require compliance for that employee unless it can demonstrate that the
individual would pose a “direct threat” to the health or safety of the employee
or others in the workplace. A “direct threat” is a “significant risk of
substantial harm” that cannot be eliminated or reduced by reasonable
accommodation. 29
C.F.R. 1630.2(r). This determination can be broken down into two
steps: determining if there is a direct threat and, if there is, assessing
whether a reasonable accommodation would reduce or eliminate the threat.
To determine if an employee who is
not vaccinated due to a disability poses a “direct threat” in the workplace, an
employer first must make an individualized assessment of the employee’s present
ability to safely perform the essential functions of the job. The factors
that make up this assessment are: (1) the duration of the risk; (2) the nature
and severity of the potential harm; (3) the likelihood that the potential harm
will occur; and (4) the imminence of the potential harm. The
determination that a particular employee poses a direct threat should be based
on a reasonable medical judgment that relies on the most current medical
knowledge about COVID-19. Such medical knowledge may include, for
example, the level of community spread at the time of the assessment.
Statements from the CDC provide an important source of current
medical knowledge about COVID-19, and the employee’s health care provider, with
the employee’s consent, also may provide useful information about the
employee. Additionally, the assessment of direct threat should take
account of the type of work environment, such as: whether the employee works
alone or with others or works inside or outside; the available ventilation; the
frequency and duration of direct interaction the employee typically will have
with other employees and/or non-employees; the number of partially or fully
vaccinated individuals already in the workplace; whether other employees are
wearing masks or undergoing routine screening testing; and the space available
for social distancing.
If the assessment demonstrates that
an employee with a disability who is not vaccinated would pose a direct threat
to self or others, the employer must consider whether providing a reasonable
accommodation, absent undue hardship, would reduce or eliminate that
threat. Potential reasonable accommodations could include requiring the
employee to wear a mask, work a staggered shift, making changes in the work
environment (such as improving ventilation systems or limiting contact with
other employees and non-employees ), permitting telework if feasible, or
reassigning the employee to a vacant position in a different workspace.
As a best practice, an employer
introducing a COVID-19 vaccination policy and requiring documentation or other
confirmation of vaccination should notify all employees that the employer will
consider requests for reasonable accommodation based on disability on an
individualized basis. (See also K.12 recommending the same best practice for religious
accommodations.)
K.6. Under the ADA, if an
employer requires COVID-19 vaccinations for employees physically entering the
workplace, how should an employee who does not get a COVID-19 vaccination
because of a disability inform the employer, and what should the employer
do? (12/16/20, updated 5/28/21)
An employee with a disability who
does not get vaccinated for COVID-19 because of a disability must let the
employer know that he or she needs an exemption from the requirement or a
change at work, known as a reasonable accommodation. To request an
accommodation, an individual does not need to mention the ADA or use the phrase
“reasonable accommodation.”
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 to refer the request for full consideration. As a best practice,
before instituting a mandatory vaccination policy, employers should provide
managers, supervisors, and those responsible for implementing the policy with
clear information about how to handle accommodation requests related to the
policy.
Employers and employees typically
engage in a flexible, interactive process to identify workplace accommodation
options that do not impose an undue hardship (significant difficulty or
expense) on the employer. This process may include determining whether it
is necessary to obtain supporting medical documentation about the employee’s
disability.
In discussing accommodation
requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN)
website as a resource for different types of accommodations.
JAN’s materials about COVID-19 are available at https://askjan.org/topics/COVID-19.cfm.
Employers also may consult applicable Occupational
Safety and Health Administration (OSHA) COVID-specific resources.
Even if there is no reasonable accommodation that will allow the unvaccinated
employee to be physically present to perform his or her current job without
posing a direct threat, the employer must consider if telework is an option for
that particular job as an accommodation and, as a last resort, whether
reassignment to another position is possible.
The ADA requires that employers
offer an available accommodation if one exists that does not pose an undue
hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).
Employers are advised to consider all the options before denying an accommodation
request. The proportion of employees in the workplace who already are
partially or fully vaccinated against COVID-19 and the extent of employee
contact with non-employees, who may be ineligible for a vaccination or whose
vaccination status may be unknown, can impact the ADA undue hardship
consideration. Employers may rely on CDC
recommendations when deciding whether an effective accommodation is available
that would not pose an undue hardship.
Under the ADA, it is unlawful for
an employer to
disclose that an employee is receiving a reasonable accommodation or to
retaliate against an employee for requesting an accommodation.
K.7. If an employer
requires employees to get a COVID-19 vaccination from the employer or its
agent, do the ADA’s restrictions on an employer making disability-related
inquiries or medical examinations of its employees apply to any part of the
vaccination process? (12/16/20, updated 5/28/21)
Yes. The ADA’s restrictions apply
to the screening questions that must be asked immediately prior to
administering the vaccine if the vaccine is administered by the employer or its
agent. An employer’s
agent is an individual or entity having the authority to act on behalf
of, or at the direction of, the employer.
The ADA generally restricts when
employers may require medical examinations (procedures or tests that seek
information about an individual’s physical or mental impairments or health) or
make disability-related inquiries (questions that are likely to elicit
information about an individual’s disability). The act of administering
the vaccine is not a “medical examination” under the ADA because it does not seek
information about the employee’s physical or mental health.
However, because the
pre-vaccination screening questions are likely to elicit information about a
disability, the ADA requires that they must be “job related and consistent with
business necessity” when an employer or its agent administers the COVID-19
vaccine. 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, cannot be vaccinated, will pose a direct
threat to the employee’s own health or safety or to the health and safety of
others in the workplace. (See general discussion in Question K.5.) Therefore, when an employer
requires that employees be vaccinated by the employer or its agent, the
employer should be aware that an employee may challenge the mandatory
pre-vaccination inquiries, and an employer would have to justify them under the
ADA.
The ADA also requires employers to
keep any employee medical information obtained in the course of an employer
vaccination program confidential.
Voluntary Employer
Vaccination Programs
K.8. Under the ADA, are
there circumstances in which an employer or its agent may ask
disability-related screening questions before administering a COVID-19
vaccine without needing to satisfy the “job-related and consistent
with business necessity” standard? (12/16/20, updated 5/28/21)
Yes. If the employer offers
to vaccinate its employees on a voluntary basis, meaning that employees can
choose whether or not to get the COVID-19 vaccine from the employer or its
agent, the employer does not have to show that the pre-vaccination screening
questions are job-related and consistent with business necessity.
However, the employee’s decision to answer the questions must be
voluntary. (See also Questions K.16 – 17.) The ADA prohibits taking an adverse
action against an employee, including harassing the employee, for refusing to
participate in a voluntary employer-administered vaccination program. An
employer also must keep any medical information it obtains from any voluntary
vaccination program confidential.
K.9. Under the ADA, is it
a “disability-related inquiry” for an employer to inquire about or request
documentation or other confirmation that an employee obtained the COVID-19
vaccine from a third party in the community, such as a pharmacy, personal
health care provider, or public clinic? (12/16/20, updated
5/28/21)
No. When an employer asks
employees whether they obtained a COVID-19 vaccine from a third party in the
community, such as a pharmacy, personal health care provider, or public clinic,
the employer is not asking a question that is likely to disclose the existence
of a disability; there are many reasons an employee may not show documentation
or other confirmation of vaccination in the community besides having a
disability. Therefore, requesting documentation or other confirmation of
vaccination by a third party in the community is not a disability-related
inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.
However, documentation or other
confirmation of vaccination provided by the employee to the employer is medical
information about the employee and must be kept confidential.
K.10. May an employer
offer voluntary vaccinations only to certain groups of employees? (5/28/21)
If an employer or its agent offers
voluntary vaccinations to employees, the employer must comply with federal
employment nondiscrimination laws. For example, not offering voluntary
vaccinations to certain employees based on national origin or another protected
basis under the EEO laws would not be permissible.
K.11. What should an employer do
if an employee who is fully vaccinated for COVID-19 requests accommodation for
an underlying disability because of a continuing concern that he or she faces a
heightened risk of severe illness from a COVID-19 infection, despite being
vaccinated? (5/28/21)
Employers who receive a reasonable
accommodation request from an employee should process the request in accordance
with applicable ADA standards.
When an employee asks for a
reasonable accommodation, whether the employee is fully vaccinated or not, the
employer should engage in an interactive process to determine if there is a
disability-related need for reasonable accommodation. This process
typically includes seeking information from the employee's health care provider
with the employee’s consent explaining why an accommodation is needed.
For example, some individuals who
are immunocompromised might still need reasonable accommodations because their
conditions may mean that the vaccines may not offer them the same measure of
protection as other vaccinated individuals. If there is a disability-related
need for accommodation, an employer must explore potential reasonable
accommodations that may be provided absent undue hardship.
Title VII and COVID-19
Vaccinations
K.12. Under Title VII, how
should an employer respond to an employee who communicates that he or she is
unable to be vaccinated for COVID-19 (or provide documentation or other
confirmation of vaccination) because of a sincerely held religious belief,
practice, or observance? (12/16/20, updated 5/28/21)
Once an employer is on notice that
an employee’s sincerely held religious belief, practice, or observance prevents
the employee from getting a COVID-19 vaccine, the employer must provide a
reasonable accommodation unless it would pose an undue hardship.
Employers also may receive religious accommodation requests from individuals
who wish to wait until an alternative version or specific brand of COVID-19
vaccine is available to the employee. Such requests should be processed
according to the same standards that apply to other accommodation requests.
EEOC guidance explains that the
definition of religion is broad and protects beliefs, practices, and
observances with which the employer may be unfamiliar. Therefore, the
employer should ordinarily assume that an employee’s request for religious
accommodation is based on a sincerely held religious belief, practice, or
observance. However, if an employee requests a religious accommodation,
and an employer is aware of facts that provide 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. See also 29 CFR 1605.
Under Title VII, an employer should
thoroughly consider all possible reasonable accommodations, including telework
and reassignment. For suggestions about types of reasonable accommodation
for unvaccinated employees, see question and answer K.6., above. In
many circumstances, it may be possible to accommodate those seeking reasonable
accommodations for their religious beliefs, practices, or observances.
Under Title VII, courts define
“undue hardship” as having more than minimal cost or burden on the
employer. This is an easier standard for employers to meet than the ADA’s
undue hardship standard, which applies to requests for accommodations due to a
disability. Considerations relevant to undue hardship can include, among
other things, the proportion of employees in the workplace who already are
partially or fully vaccinated against COVID-19 and the extent of employee
contact with non-employees, whose vaccination status could be unknown or who
may be ineligible for the vaccine. Ultimately, if an employee cannot be
accommodated, employers should determine if any other rights apply under the
EEO laws or other federal, state, and local authorities before taking adverse
employment action against an unvaccinated employee
K.13. Under Title VII,
what should an employer do if an employee chooses not to receive a COVID-19
vaccination due to pregnancy? (12/16/20, updated 5/28/21)
Under Title VII, some employees may
seek job adjustments or may request exemptions from a COVID-19 vaccination
requirement due to pregnancy.
If an employee seeks an exemption
from a vaccine requirement due to pregnancy, the employer must ensure that the
employee is not being discriminated against compared to other employees similar
in their ability or inability to work. This means that a pregnant
employee may be entitled to job modifications, including telework, changes to
work schedules or assignments, and leave to the extent such modifications are
provided for other employees who are similar in their ability or inability to
work. Employers should ensure that supervisors, managers, and human resources
personnel know how to handle such requests to avoid disparate
treatment in violation of Title VII.
GINA And COVID-19 Vaccinations
Title II of GINA prohibits covered
employers from using the genetic information of employees to make employment
decisions. It also restricts employers from requesting, requiring,
purchasing, or disclosing genetic information of employees. Under Title II of
GINA, genetic information includes information about the manifestation of
disease or disorder in a family member (which is referred to as “family medical
history”) and information from genetic tests of the individual employee or a
family member, among other things.
K.14. Is Title II of GINA
implicated if an employer requires an employee to receive a COVID-19 vaccine
administered by the employer or its agent? (12/16/20, updated 5/28/21)
No. Requiring an employee to
receive a COVID-19 vaccination administered by the employer or its agent would
not implicate Title II of GINA unless the pre-vaccination medical screening
questions include questions about the employee’s genetic information, such as
asking about the employee’s family medical history. As of May 27,
2021, the pre-vaccination medical screening questions for the first three
COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do
not seek family medical history or any other type of genetic information.
See CDC’s Pre-vaccination Checklist (last
visited May 27, 2021). Therefore, an employer or its agent may ask these
questions without violating Title II of GINA.
The act of administering a COVID-19
vaccine does not involve the use of the employee’s genetic information to make
employment decisions or the acquisition or disclosure of genetic information
and, therefore, does not implicate Title II of GINA.
K.15. Is Title II of GINA
implicated when an employer requires employees to provide documentation or
other confirmation that they received a vaccination from a doctor, pharmacy,
health agency, or another health care provider in the community? (12/16/20,
updated 5/28/21)
No. An employer requiring an
employee to show documentation or other confirmation of vaccination from a
doctor, pharmacy, or other third party is not using, acquiring, or disclosing
genetic information and, therefore, is not implicating Title II of GINA.
This is the case even if the medical screening questions that must be
asked before vaccination include questions about genetic information, because
documentation or other confirmation of vaccination would not reveal genetic
information. Title II of GINA does not prohibit an employee’s own health
care provider from asking questions about genetic information. This GINA Title
II prohibition only applies to the employer or its agent.
Employer Incentives For COVID-19
Voluntary Vaccinations Under ADA and GINA
ADA: Employer Incentives
for Voluntary COVID-19 Vaccinations
K.16. Under the ADA, may
an employer offer an incentive to employees to voluntarily provide
documentation or other confirmation that they received a vaccination on their
own from a pharmacy, public health department, or other health care provider in
the community? (5/28/21)
Yes. Requesting documentation
or other confirmation showing that an employee received a COVID-19 vaccination
in the community is not a disability-related inquiry covered by the ADA.
Therefore, an employer may offer an incentive to employees to voluntarily
provide documentation or other confirmation of a vaccination received in the
community. As noted elsewhere, the employer is required to keep
vaccination information confidential pursuant to the ADA.
K.17. Under the ADA, may
an employer offer an incentive to employees for voluntarily receiving a
vaccination administered by the employer or its agent? (5/28/21)
Yes, if any incentive (which
includes both rewards and penalties) is not so substantial as to be
coercive. Because vaccinations require employees to answer
pre-vaccination disability-related screening questions, a very large incentive
could make employees feel pressured to disclose protected medical information.
As explained in K.16., however, this incentive limitation does not apply if an
employer offers an incentive to employees to voluntarily provide documentation
or other confirmation that they received a COVID-19 vaccination on their own
from a third-party provider that is not their employer or an agent of their
employer.
GINA: Employer Incentives
for Voluntary COVID-19 Vaccinations
K.18. Under GINA, may
an employer offer an incentive to employees to provide documentation or other
confirmation that they or their family members received a vaccination from
their own health care provider, such as a doctor, pharmacy, health agency, or
another health care provider in the community? (5/28/21)
Yes. Under GINA, an employer
may offer an incentive to employees to provide documentation or other
confirmation from a third party not acting on the employer’s behalf, such as a
pharmacy or health department, that employees or their family members have been
vaccinated. If employers ask an employee to show documentation or other
confirmation that the employee or a family member has been vaccinated, it is not
an unlawful request for genetic information under GINA because the fact that
someone received a vaccination is not information about the manifestation of a
disease or disorder in a family member (known as family medical history under
GINA), nor is it any other form of genetic information. GINA’s restrictions on
employers acquiring genetic information (including those prohibiting incentives
in exchange for genetic information), therefore, do not apply.
K.19. Under GINA, may an
employer offer an incentive to employees in exchange for the employee getting
vaccinated by the employer or its agent? (5/28/21)
Yes. Under GINA, as long as
an employer does not acquire genetic information while administering the
vaccines, employers may offer incentives to employees for getting
vaccinated. Because the pre-vaccination medical screening questions for
the three COVID-19 vaccines now available do not inquire about genetic
information, employers may offer incentives to their employees for getting
vaccinated. See K.14 for more about GINA and pre-vaccination medical
screening questions.
K.20. Under GINA, may an
employer offer an incentive to an employee in return for an employee’s family
member getting vaccinated by the employer or its agent? (5/28/21)
No. Under GINA’s Title II
health and genetic services provision, an employer may not offer any incentives
to an employee in exchange for a family member’s receipt of a vaccination from
an employer or its agent. Providing such an incentive to an
employee because a family member was vaccinated by the employer or its agent
would require the vaccinator to ask the family member the pre-vaccination
medical screening questions, which include medical questions about the family
member. Asking these medical questions would lead to the employer’s
receipt of genetic information in the form of family medical history of
the employee. The regulations implementing Title II of GINA prohibit
employers from providing incentives in exchange for genetic information.
Therefore, the employer may not offer incentives in exchange for the family
member getting vaccinated. However, employers may still offer an
employee’s family member the opportunity to be vaccinated by the employer or
its agent, if they take certain steps to ensure GINA compliance.
K.21. Under GINA, may an employer
offer an employee’s family member an opportunity to be vaccinated without offering
the employee an incentive? (5/28/21)
Yes. GINA permits an employer
to offer vaccinations to an employee’s family members if it takes certain steps
to comply with GINA. Employers must not require employees to have their
family members get vaccinated and must not penalize employees if their family
members decide not to get vaccinated. Employers must also ensure that all
medical information obtained from family members during the screening process
is only used for the purpose of providing the vaccination, is kept
confidential, and is not provided to any managers, supervisors, or others who
make employment decisions for the employees. In addition, employers need
to ensure that they obtain prior, knowing, voluntary, and written authorization
from the family member before the family member is asked any questions about
his or her medical conditions. If these requirements are met, GINA
permits the collection of genetic information.
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.
