The EEOC recently provided updated guidance for vaccinations in the workplace in light of the FDA’s approval of two COVID-19 vaccines. This guidance may be useful for employers who intend to offer the vaccine to their employees or otherwise require employees to be vaccinated.
This could soon include restaurant and food service workers, and public safety employees other than first responders (such as engineers or public utility employees), who the CDC has recommended be in the 1c category receiving the second round of COVID-19 vaccinations.
The ADA limits an employer’s ability to make disability-related inquiries of its employees, and this includes medical examinations for employees. The EEOC clarified, however, that the vaccination itself is not a medical examination.
That said, pre-vaccination screenings may still include a disability-related inquiry, which does implicate ADA protections. Any employers that require employees to receive a vaccination administered by the employer must be able to show that pre-vaccination screening inquiries are job-related and consistent with business necessity.
If an employer makes the vaccine available to employees on a voluntary basis, it does not need to show that pre-vaccination screening inquiries are job-related and consistent with business necessity. Employers must ensure that any employee that opts out of a voluntary vaccine is not retaliated against for any refusal to answer pre-vaccination screening questions.
Additionally, requiring employees to show proof of receipt of a COVID-19 vaccination from an outside provider is not a disability-related inquiry under the ADA.
If an employee is unable to be vaccinated due to a disability protected by the ADA and would pose a direct threat to the worksite (such as exposing others to the virus at work), employers cannot exclude that employee from the workplace unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk of the employee posing a direct threat. If you have an employee who indicates they cannot receive a COVID-19 vaccination due to a disability, please contact MVP’s employment law attorneys, who can help you determine whether there is a direct threat posed by the non-vaccination, what kinds of reasonable accommodations may be appropriate, when to exclude non-vaccinated employees from the workplace, and how to make sure your supervisory staff knows how to recognize a request for accommodation.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.
