The Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 Guidance What you Should Know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws to include guidance on employer vaccination policies. Hancock Daniel has issued a Client Advisory on the topic.

The EEOC has stated the administration of a COVID-19 vaccine to an employee by the employer or a third party with whom the employer contracts with is not a “medical examination” under the Americans with Disabilities Act (ADA). Pre-vaccination medical screening questions are likely to elicit information about a disability and if asked by an employer or a contractor of the employer are “disability-related” under ADA. To ask such pre-screening question, the employer would have to show the inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer would need a reasonable belief, based on objective evidence, that an employee who does not answer the questions and doesn’t get the vaccine will pose a direct threat to the health or safety of herself/himself or others.  

There are two instances when pre-screening questions can be asked without needing to satisfy the job-related requirements. First, when an employer’s vaccination program is voluntary. Second, when an employee receives and employer-required vaccination from a third party not contracted with the employer, such as a pharmacy or the employee’s own healthcare provider. The EEOC guidance gives detail on handling accommodation requests from employees including disability or religious accommodations. For additional information please see the COVID-19 Vaccine Employment Questions​.