EEOC Issues Guidance For Employers Considering Mandatory COVID-19 Vaccine Policies

Michael NearyMichael Neary

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to address how a COVID-19 vaccine interacts with the equal employment opportunity laws enforced by EEOC. We are likely months away from pharmaceutical companies making the vaccine generally available to the public. But the EEOC guidance is a good resource for employers thinking through whether to institute a mandatory COVID-19 vaccine policy when that day comes.

EEOC Provides a Framework for Mandatory Vaccine Programs

There are three key takeaways from the guidance. First, a policy mandating that employees receive the COVID-19 vaccine is possible provided disability and religious accommodation requests are carefully evaluated. Second, the pre-screening questions that must be asked before a vaccine is administered will likely compel many employers considering a mandatory program to institute a voluntary one instead or to require employees to receive the vaccine elsewhere. Finally, the COVID-19 situation in the country may change dramatically by the time a vaccine is widely available, which could substantially alter EEOC’s guidance. Employers should consider the guidance as they plan but continue to monitor the issue before finalizing any vaccine policies.

EEOC Answers Common Questions Employers Are Asking About Whether To Mandate A Vaccine

The updated EEOC guidance answers a series of questions related to how a mandatory vaccine policy interacts with equal employment opportunity laws. Below is a summary of the questions and answers provided by EEOC.

  • Is an employer administering a COVID-19 vaccine, directly or through a vendor hired by the employer, performing a medical examination under the Americans with Disabilities Act (“ADA”)?
    • Answer: No, with a catch. A medical examination under the ADA is a “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.” While administering the vaccine is not a medical test, pre-screening questions would likely uncover underlying physical impairments and constitute a medical examination under the ADA. Under the ADA, employers can perform medical examinations only if they are “job-related and consistent with business necessity.” To meet this standard, employers would need a reasonable basis, based on objective evidence, to conclude an employee that does not receive the vaccine because of a refusal to answer the pre-screening questions poses a direct threat to the health or safety of the employee or others. COVID-19 conditions on the ground at the time of the mandatory program would dictate whether an employer could meet this standard.
    • The EEOC guidance identifies two ways around this issue. First, an employer could make the program voluntary instead of mandatory. The pre-screening questions do not need to satisfy the job-related and consistent with business necessity standard if the vaccine program is truly voluntary. Second, an employer could mandate employees receive the vaccine from third parties not connected to the employer. Under such a framework, since the third party would ask the pre-screening questions and not the employer, the employer need not satisfy the job-related and consistent with business necessity standard of the ADA. An employer may require an employee to provide proof of having received the vaccine without implicating the ADA so long as the employer makes clear the proof should not disclose underlying physical or mental impairments.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a disability?
    • Answer: The employer must perform an individualized assessment under the ADA to determine whether the unvaccinated employee poses a direct threat to the workplace because of 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.” In analyzing this question, four factors should be considered: (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. Assuming a direct threat is found, the employer could only exclude the employee if “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 an employer finds that there is no way to provide a reasonable accommodation, the employer can bar the employee from the workplace but cannot necessarily terminate. Before terminating, the employer would need to determine whether other accommodations are available. Potential accommodations to consider are remote work, paid leave, or an unpaid leave of absence.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a sincerely held religious belief?
    • Answer: The employer should assume the religious belief is sincerely held and provide a reasonable accommodation to its mandatory vaccine program for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. The undue hardship analysis under Title VII asks whether the accommodation has more than a de minimis cost or burden on the employer. In rare circumstances, an employer having an objective basis to question the nature of the religious belief or the employee’s sincerity in that belief can ask for further information. If the employer cannot provide an accommodation because of undue burden, it can bar the employee from the workplace, but must consider whether alternative accommodations would allow the employee to remain employed without entering the workplace.
  • Is the Genetic Information Nondiscrimination Act (“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: No, with a catch. Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquiring genetic information except in six narrow circumstances, or (3) disclosing genetic information except in six narrow circumstances. Administering the vaccine or requiring proof that an employee received one does not implicate GINA because neither involves “the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information as defined by the statute.”
    • The pre-screening questions, however, may implicate GINA. The pre-screening questions for a publicly available COVID-19 vaccine are not clear. If those questions ask for any of the following they would implicate GINA:
      • 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.
    • If the pre-screening questions ask for this information, EEOC advises it would be wise for employers implementing a mandatory program not to administer the vaccine directly or through a third-party vendor but to require employers to obtain the vaccine elsewhere. When asking for proof of vaccination, the employer should make clear employees are not to provide GINA related information. Such a warning protects an employer from liability if the employee provides GINA protected information along with any proof of vaccine receipt.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Voluntary Acceptance of a Transfer May Waive Employees’ Claims in Maryland and Virginia

Recognition of “Constructive Demotion” Claims Seems Imminent.

Lauri ClearyLauri Cleary

In October, the Fourth Circuit Court of Appeals confirmed in Laird v. Fairfax County, Virginia, that an employee voluntarily accepting a lateral transfer to another position (there, to settle a disability discrimination claim) may not be able to establish discrimination or retaliation just because the new job is not all she had hoped.

To make out a viable claim, the employee must suffer an “adverse employment action” such that the transfer resulted in “a significant detriment” to the employee. Whether an employee’s dissatisfaction rises to the level of “significant detriment” is a factual issue determined on a case-by-case basis.

A transfer must cause a “significant detriment” to be actionable

After working in the new position for some months, Ms. Laird came to believe she had been demoted. She found her new position “boring” and to be a “thinkless job, just data entry,” and hurt her potential for future promotion.

She sued the County for discrimination and retaliation under the Americans with Disabilities Act. The federal trial judge in Alexandria entered judgment against her, finding her disappointment, however genuine, was not significant enough to establish a significant detriment.

After reviewing all facts anew, the Fourth Circuit Court of Appeals agreed. Offering no real guidance on what establishes a “significant detriment,” the Court of Appeals discussed what does not. In her new job, Ms. Laird received the same compensation, asked for and received changes to the new title and duties, and received additional accommodations of her disability.

The Court noted near the end of its opinion that she had abandoned her argument that intolerable discriminatory conditions in her original job had compelled her to accept a transfer—in essence that she was forced to accept a demotion. Having waived that argument, she could no longer claim that the transfer itself had been discriminatory or retaliatory.

A transfer that is not “voluntary” may be a “constructive demotion”

Had she not abandoned her “constructive demotion” argument, Ms. Laird may have prevailed by claiming acceptance of the transfer had not been “voluntary.”

The majority did not address that potential, but a member of the three-judge panel did in a concurrence. Observing that the DC Circuit (and every other circuit court of appeals to address the issue) has recognized constructive demotion claims, and noting that this circuit already has recognized claims for “constructive discharge” (for employee left with no option but to resign), the concurrence concluded: “Logic dictates that if a demotion can constitute a constructive discharge, then a constructive demotion can similarly constitute a constructive demotion.”

Thus, as in DC, an employee who can allege a work experience so intolerable as to leave no option but to accept a transfer likely will have a viable claim for constructive demotion claim in MD and VA.

Employer takeaways

Making a lateral transfer of a (current or potential) disability claimant to settle claims of discrimination and/or retaliation may not be an easy panacea. The transfer must be both “voluntary” and it not trade one “significant detriment” (discrimination or retaliation) for another (a significantly inferior position).

For more information, contact Lauri at 301-657-0176 or lecleary@lerchearly.com.