EEOC Weighs in on Vaccines with Eye on Disability, Genetic Info Implications

Frank Ferreri

Washington, DC ( – As the emergence of COVID-19 vaccinations signals a light at the end of the pandemic tunnel, many employers will soon be faced with the question of what to do when employees refuse to roll up their sleeves for coronavirus inoculation.

While there is no law against requiring vaccines for workplace safety, the Equal Employment Opportunity Commission has recently updated its COVID-19 guidance to address potential disability discrimination issues that could arise in the return-to-work era of shots and boosters.

The following chart highlights the EEOC’s stance on vaccinations, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act .


EEOC Guidance

Vaccines and medical examinations The ADA includes rules on disability-related inquiries and medical examinations, but the EEOC explained that a vaccine is not a medical exam. “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,” the commission wrote.
Pre-vaccination medical screening questions As is so often the case, the devil’s in the details, and just about every responsible vaccination comes with medical screening questions. According to the EEOC, such questions are ADA-covered. “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,’” the EEOC advised.
“Job-related and consistent with business necessity” To meet ADA standards regarding pre-vaccination screenings, employers must: 1) have a reasonable belief; 2) based on objective evidence; that 3) an employee who doesn’t answer the questions and, therefore, doesn’t receive a vaccination, will pose a direct threat to the health or safety of herself or others.
Direct threat The ADA regulations consider a direct threat in the workplace to be a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation” under 29 CFR 1630.2(r).
Voluntary vaccinations If an employer offers a vaccination to employees on a voluntary basis, the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.
Vaccines from third parties If an employee receives an employer-required vaccination from a third party, such as a pharmacy, that doesn’t have a contract with the employer, questions that the third party asks in a screening would not be covered by ADA standards.
Confidentiality The ADA requires employers to keep medical information obtained in the course of the vaccination program confidential.
Proof of vaccination Requiring an employee to show proof of being of being vaccinated is not a disability-related inquiry because it “is not likely to elicit information about a disability,” according to the EEOC. However, follow-up questions, such as asking why an employee didn’t receive a vaccination, could elicit disability-related information and implicate ADA standards.
Safety-based qualification standards While the ADA allows employers to have qualification standards, if a safety-based standard, such as a vaccination requirement, screens out or tends to screen out individuals with disabilities, the employer must show that an unvaccinated employee would pose a direct threat.
Determining whether a direct threat exists The EEOC advises employers to conduct an individualized assessment of four factors to determine whether a direct threat exists and consider:

  1. The duration of the risk.
  2. The nature and severity of the potential harm.
  3. The likelihood that the potential harm will occur.
  4. The imminence of the potential harm.

Even if there is a direct threat, an employer may not exclude the employee from the workplace unless there is no way to provide a reasonable accommodation to eliminate or reduce the risk.

Interactive process The EEOC directs employers and employees to “engage in a flexible, interactive process to identify workplace accommodation options.” The process should include: 1) determining whether it is necessary to obtain supporting documentation about the employee’s disability; and 2) considering the possible options for accommodation.
Genetic information and vaccinations Administering a COVID-19 vaccination or requiring employees to provide proof that they have received a COVID-19 vaccination does not involve the use of genetic information to make employment decisions or the acquisition or disclosure of genetic information under GINA regulations at 29 CFR 1635.3.
Screening questions and genetic information Screening questions could elicit information about genetic information, such as family medical history. According to the EEOC, if the pre-vaccination questions 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.

If an employer goes this route, a best practice is to warn employees not to provide genetic information as part of the proof using model language from 29 CFR 1635.8(b)(1)(i).

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