December 17, 2020 (WASHINGTON INSIDER ALERT) - On December 16, the Equal Employment Opportunity Commission (EEOC) updated its guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws by adding a section “K.” The new section addresses questions on COVID-19 vaccinations and the applicability of equal employment opportunity laws. The previously released sections of the guidance (A-J) address issues concerning COVID-19-related (A) medical inquiries, (B) confidentiality of medical information, (C) hiring and onboarding issues, (D) reasonable accommodations, (E) harassment, (F) furloughs and layoffs, (G) return to work, (H) age discrimination, (I) caregiver and family responsibilities, and (J) pregnancy.
While we encourage members to review the full guidance, below are some important highlights.
The EEOC addresses this issue in Section K(5), stating that,
Section K(4), however, notes that “Some COVID-19 vaccines may only be available to the public for the foreseeable future under [Emergency Use Authorization] granted by the [Food and Drug Administration], which is different than approval under FDA vaccine licensure.” Under EUA, the FDA has an obligation to “[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.” It is unclear how this provision would impact mandatory vaccination, particularly when administered by the employer.
The new section addresses important questions about ADA regulation of employers that administer vaccines to employees on a mandatory or volunteer basis, with a focus on pre-screening questions, which the EEOC regards as “inquiries likely to elicit information about a disability.”
Section K also states situations where an employer sends employees to a third-party provider to be vaccinated. The agency states, that while “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry . . . subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
As requiring employees to receive a vaccination or administering a vaccine to employees does not involve the use of genetic information to make employment decisions, GINA is not implicated when an employer administers or requires a COVID-19 vaccine. However, pre-screening questions may violate GINA if they seek genetic information, such as family members’ medical histories. Because certain COVID-19 vaccines utilize mRNA technology, some have questioned whether such vaccines modify a recipient’s genetic makeup and whether the requirement of such a vaccine would therefore violate GINA. The CDC has attested that mRNA COVID-19 vaccines do not interact with DNA in any way. Therefore, the requirement of mRNA vaccines is not in conflict with GINA.
While it is still unclear what screening checklists for contraindications will be provided with COVID-19 vaccinations, it is possible that pre-vaccination questions will include questions about genetic information.