By Frank Ferreri, January 11, 2021
Notable federal employees — like the National Institute of Health’s Anthony Fauci and Francis Collins – have rolled up their sleeves for the COVID-19 vaccine, signaling the start of another “new normal” sure to define 2021: workplace-required inoculations.
With agencies of all types looking to bring their workforces back together safely, a handle on the Equal Employment Opportunity Commission’s updated COVID-19 guidance will help federal employers stay on the right side of EEO laws when requiring vaccinations.
Here’s a look at how the EEOC views the Americans with Disability Act, Genetic Information Nondiscrimination Act, and Title VII in the vaccine era.
Under the ADA, which applies to agencies through the Rehabilitation Act, a vaccination itself is not a medical examination. However, pre-screening vaccinations may implicate the ADA’s provision on disability-related inquiries. Such inquiries may only be made if they are “job-related and consistent with business necessity.”
“Job-related and consistent with business necessity” in the vaccine context means that the agency has a reasonable belief, based on objective evidence, that an employee who doesn’t answer the questions and doesn’t receive a vaccination will pose a direct threat to the health or safety of herself or others.”
A “direct threat” is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.
Making the case that a pandemic-causing virus is a direct threat to a workplace shouldn’t be too difficult in a time of lockdowns and social distancing.
However, some employees may have disability-related reasons for not receiving a vaccination. Agencies should conduct an individualized assessment to determine whether a direct threat exists, considering four factors: 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.
The skinny: If there is a direct threat and no way possible to provide a reasonable accommodation that would eliminate or reduce the risk, agencies may exclude an employee from the workplace. That doesn’t mean they can automatically terminate an employee, though. Instead, given how many agencies pivoted their workforces to remote positions, telework may be an option for those unable to receive a COVID-19 vaccination due to a disability.
The EEOC advises using the interactive process to determine whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.
Religion, pandemics, and vaccines don’t always go together, and once an agency has notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the agency must provide a reasonable accommodation unless it would pose an undue hardship.
An “undue hardship” involves more than a de minimis cost or burden on the employer.
The skinny: The best practice is to assume that the employee has a sincerely held religious belief in seeking a vaccination accommodation. However, if an agency has an objective basis for questioning the religious nature or sincerity of the belief, the EEOC notes that agencies can seek additional supporting information.
Similar to the disability context, with so much telework already happening in federal agencies, working remotely may be a natural accommodation for an employee who cannot receive a vaccine due to religious reasons.
Prior to 2020, “messenger ribonucleic acid” didn’t get much attention outside of labs and biology classrooms, but the “new normal” may soon bring history’s most anticipated mRNA technology to a workplace near you.
The Centers for Disease Control and Prevention reports that COVID-19 vaccines don’t interact with people’s genetic material, so requiring the vaccine, by itself, wouldn’t violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.
But here’s the rub: Pre-vaccination medical screening questions may elicit information about employees’ genetic information if they include questions regarding the immune systems of family members.
The skinny: If pre-vaccination screening doesn’t include questions about genetic information, like family medical history, the agency doesn’t have to worry about GINA. If the screening does include such questions, the agency should consider requesting employees to show proof of vaccination from a third party, such as their doctors or pharmacies.
In that case, as a best practice, agencies should warn employees not to provide genetic information as part of the proof using the model language of 29 CFR 1635.8(b)(1)(i). Including this language will protect agencies from GINA charges as the law considers genetic information obtained after providing the warning “inadvertent.”
Pregnancy Discrimination Act
As an amendment to Title VII, the PDA should be on employers’ minds when vaccination requirements work their way into agency policy.
While the EEOC’s latest update didn’t specifically address pregnancy discrimination, the commission previously emphasized that “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”
Under the U.S. Supreme Court’s holding in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), an employee can show pregnancy discrimination by presenting evidence that: 1) she sought an accommodation; 2) the agency didn’t accommodate her; and 3) the agency did accommodate others “similar in their ability or inability to work.”
In the Court’s reasoning, an employee can make her case “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”
The skinny: Per EEOC directions, agencies should make sure that supervisors, managers, and HR personnel know how to handle pregnancy-related accommodation requests to avoid disparate treatment in violation of Title VII.
Yet again, the case for telework will likely arise. If nonpregnant employees are offered the accommodation of working remotely, it would logically follow that a pregnant employee could potentially still do the job while teleworking. info@FELTG.com
[Editor’s note: Register now for EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a half-day virtual training event on March 10.]