Page 54 - Demo

individualized inquiry for each unvaccinated employee to determine if the employee poses a direct threat that cannot be reduced or eliminated with a reasonable accommodation.
In accordance with Title VII of the Civil Rights Act, an employee’s sincerely-held religious belief, practice, or observance may also prevent that employee from taking the vaccine. For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer. The EEOC further states that employers should generally assume that a request for a religious accommodation is based on a sincerely-held belief, but if the employer has an objective basis for questioning the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information.
Although a mandatory vaccination is not a medical exam under the ADA, employers must use caution when asking any pre-vaccination screening questions. Pre-vaccination screening questions may elicit information about an employee’s disability or genetic information and implicate the ADA and/or GINA. Specifically, the EEOC states that if an employer requires an employee to receive the COVID-19 vaccine administered by the employer, the employer must show that any disability-related pre-vaccination screening questions are “job-related and consistent with business necessity.” Pre-vaccination screening does not implicate the ADA or GINA if the vaccination program is voluntary, or if the vaccination is administered by a third-party that does not have a contract with the employer, such as a pharmacy or healthcare provider.
Similarly, the EEOC advises employers to proceed with caution when asking employees for proof of vaccination. Simply asking an employee about vaccination status or proof of vaccination is not a disability- related inquiry. But asking additional questions regarding the reasons why an employee is not vaccinated may elicit information about a disability and implicate the ADA. Therefore, such questions must be “job- related and consistent with business necessity.”
While the EEOC guidance provides that employers may mandate COVID-19 vaccinations, employers must understand that they will not be able to require vaccinations for those employees who have an ADA disability or a sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. Employers should also be cautious when asking pre-vaccination screening questions, and should consider making COVID-19 vaccines voluntary or having a third-party administer the vaccine to avoid potential ADA or GINA implications.
The rules and regulations on this issue may continue to evolve. Certain industries may ultimately be required to vaccinate employees, such as those employers in the healthcare industry. As a result, before requiring mandatory vaccinations, employers should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.
J. Chadwick Hatmaker is an FDCC Defense Counsel Member and a Member of the Woolf, McClane, Bright, Allen & Carpenter, PLLC law firm in Knoxville, TN. Contact him at chatmaker@wmbac.com
50
Insights SPRING2021