What Does The EEOC’s Guidance On Covid-19 Vaccination Say?
Employers that do not administer the vaccine are
allowed to ask employees for proof of vaccination—it
is not a medical examination or disability-related
inquiry under the ADA. However, if the manner
in which an employer requests proof may elicit
information about a disability, it will be subject to
the ADA standard for disability-related inquiries.
The EEOC encouraged employers to expressly warn
employees not to provide any medical information
with proof of receipt of a Covid-19 vaccination.
To avoid implicating the ADA, employers should
essentially ask for a “yes” or “no” with respect to
proof of vaccination and not why an employee has
not received the vaccine to avoid gathering any medical
ADA & Title VII Accommodations
The EEOC affirmed that employers must provide
reasonable accommodations for employees with
an ADA-covered disability or sincerely held religious
belief that prevents them from receiving a vaccine.
However, employers are not required to provide a
disability accommodation that would pose a direct
threat to the health or safety of other employees.
If an employee’s ADA-covered disability prevents
them from receiving a vaccine, the employer must
show that an unvaccinated employee would pose
a direct threat to other workers and the threat
cannot be eliminated or reduced by reasonable
accommodation. Even if an accommodation cannot
eliminate or reduce an unvaccinated employee
from presenting a direct threat to the workplace,
the employee may be entitled to other reasonable
accommodations such as remote work.
Likewise, employers do not have to provide a
religious accommodation if it would pose an “undue
hardship,” which is defined under Title VII as having
more than de minimis cost or burden on the employer.
(Note that the standard for “undue hardship” is
different for religious accommodations than for
disability accommodations.) The EEOC encouraged
employers to assume that an employee’s request
for religious accommodation is based on a sincerely
held religious belief. But, employers are justified in
requesting additional information if the employer has
an objective basis for questioning either the religious
nature or the sincerity of a particular belief, practice,
The EEOC also noted that administering a Covid-19
vaccine does not violate Title II of the Genetic
Information Nondiscrimination Act (GINA), but
pre-screening questions that ask about genetic
information may violate GINA.
This article originally appeared here.
Amy Angel is a Partner at Barran Liebman LLP, representing public and private employers in all stages of
employment litigation, including advice and compliance, administrative complaints, and trial as well as
appeal. Amy works with employers of all sizes, from small local companies to national companies with
operations in Oregon and in a wide-variety of industries, including construction, retail, manufacturing,
agriculture, law, and health care, just to name a few.
Natalie M. Pattison is an Attorney Barran Liebman LLP. She is a member of the firm’s employment,
labor relations, and benefits practices, where she specializes in drafting memoranda, conducting legal
research, and developing policy procedures, trainings, and handbooks.
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