As employers weigh incentives or requirements for employees to be vaccinated, they will need to consider new EEOC guidance and concerns over vaccine side effects.
The latest Kaiser Family Foundation survey finds 71% of Americans say they will either "definitely or probably" be vaccinated, up from 63% in September. However, 15% say they will definitely not be vaccinated. The main reasons for not receiving the vaccine are worries about possible side effects (59%), lack of trust in the government to ensure the vaccine's safety and effectiveness (55%), and concerns that the vaccine is too new (53%).
The EEOC issued new guidance this week regarding vaccinations in the workplace and the legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). Some of the highlights include:
- A vaccination is not a medical exam under the ADA, and thus does not trigger the ADA's protections on disability-related inquiries.
- Pre-screening vaccination questions could be disability-related inquiries under the ADA if the employer requires vaccination and the vaccine is administered by the employer, or through a contracted third party. In this case, the questions must be job related and consistent with business necessity.
- If a vaccination policy is voluntary, questions must also be voluntary.
- If an employee gets a vaccine elsewhere (i.e., not from the employer), questions do not have to be job-related and consistent with business necessity.
- Asking or requiring an employee to show proof of vaccination is not a disability-related inquiry under the ADA.
- For those employees whose disability prevents them from being vaccinated, employers must conduct the usual direct threat analysis/reasonable accommodation process—only in circumstances where no accommodation is available may an employee be excluded from the workplace.
- The usual reasonable accommodation process for religious exemptions under Title VII applies to vaccinations.
- Requiring a vaccination does not implicate GINA, but pre-screening questions might.
For a full breakdown of what CHROs need to know about the legal issues regarding vaccinations, click here.
Most employers are taking a wait and see approach and are leaning towards encouraging vaccinations instead of mandating them. It is likely that the EEOC will release further guidance in response to employer questions regarding vaccination policies in the coming year.