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Written By ESR News Blog Editor Thomas Ahearn
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication that addressed questions arising under the Federal Equal Employment Opportunity (EEO) Laws related to the Coronavirus (COVID-19) pandemic with new information for employers and employees about COVID-19 vaccinations, according to an EEOC press release.
The EEOC publication – “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” – now includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).
The availability of COVID-19 vaccinations may raise questions about the applicability of various EEO laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act. The EEO laws do not interfere with or prevent employers from following Centers for Disease Control and Prevention (CDC) or other federal, state, and local public health authorities’ guidelines and suggestions.
The new section – “K. Vaccinations” – includes issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination. In response to inquiries from the public, the EEOC has provided resources on its website related to the pandemic in an employment context. The EEOC will monitor developments and provide assistance to the public as needed. Questions added on 12/16/2020 include:
- 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? Answer
- 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? Answer
- K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? Answer
- K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? Answer
- 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? Answer
- 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? Answer
- 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? Answer
- 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? Answer
- K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? Answer
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability, or genetic information. Most employers with at least 15 employees are covered by EEOC laws. To learn more about the EEOC, visit www.eeoc.gov.
Coronavirus (COVID-19) is a potentially deadly respiratory illness that spreads from person to person. As of December 17, 2020, there are more than 75 million global cases and more than 1.6 million global deaths, while the United States leads the world with more than 17.2 million cases and more than 310,000 deaths, according to research from the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
Employment Screening Resources® (ESR) – a leading global background check provider that was ranked the number one enterprise screening firm in 2020 by HRO Today – uses best practices for background checks for Coronavirus, offers a white paper about background checks in the Age Coronavirus, and posts blogs about how COVID-19 is impacting employers on the ESR News Blog. To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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