EEOC guidance on vaccinations
FYI, yesterday, the EEOC updated its guidance for employers on considerations for mandating vaccines.
It can be found here at item K:
[cid:image001.png@01D6D48D.37E1F200]http://www.dallascitynews.net/
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney's Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
Thank you
Get Outlook for iOShttps://aka.ms/o0ukef
From: Disasterrelief disasterrelief-bounces@lists.imla.org on behalf of Huggard, Jennifer jennifer.huggard@dallascityhall.com
Sent: Thursday, December 17, 2020 4:59:52 PM
To: disasterrelief@lists.imla.org disasterrelief@lists.imla.org
Subject: [Disasterrelief] EEOC guidance on vaccinations
External Email!
FYI, yesterday, the EEOC updated its guidance for employers on considerations for mandating vaccines.
It can be found here at item K:
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-lawshttps://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.eeoc.gov%2Fwysk%2Fwhat-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws&data=04%7C01%7CTammy.palomino%40dallascityhall.com%7Cdfd11849573b4a47f1ec08d8a2df9629%7C2935709ec10c4809a302852d369f8700%7C0%7C0%7C637438428470627333%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=GVOuAJLxqrLaCUS8n4Tx%2BrX2Wsqya0RecKQEAayQKEo%3D&reserved=0
[cid:image001.png@01D6D48D.37E1F200]https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.dallascitynews.net%2F&data=04%7C01%7CTammy.palomino%40dallascityhall.com%7Cdfd11849573b4a47f1ec08d8a2df9629%7C2935709ec10c4809a302852d369f8700%7C0%7C0%7C637438428470637288%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000&sdata=mr%2Fb5s20z60pp1b3mz1HH%2Fu%2BayRzF9d3AB6cvk8l%2F2A%3D&reserved=0
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney’s Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
CAUTION: This email originated from outside of the organization. Please, do not click links or open attachments unless you recognize the sender and know the content is safe.
Do read the guidance at the link below. Am offering a brief "translation", since it is sometimes difficult to read through the regulatory guidance at the end of the day.
The EEOC's new guidance, called "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws," includes a section providing employers with information about how mandating a COVID-19 vaccination would interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). The EEOC's updated guidance lays out the legal framework under the Americans with Disabilities Act and Title VII of the Civil Rights Act for how employers choosing to require vaccination should approach those situations where an employee can't receive the shot because of an underlying disability or because of their religious beliefs or when the employer chooses to administer the shots in-house.
The guidance details the steps employers must take before banning unvaccinated workers from the office/job site. The guidance is part of a technical assistance document on the EEOC's website, which the EEOC has periodically updated during the coronavirus pandemic.
Per the EEOC, employers requiring the vaccine may do so, but for those unable to take the vaccination, they must strive to first provide the employee a reasonable accommodation or exempt them from the vaccination requirement altogether. If that's not possible, those employees may be blocked from coming to work -- but they can't "automatically" be terminated, if the employee has either a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible. The legal analysis used will vary, depending on whether the employee is asserting a faith-based belief under Title VII or has a disability under the Americans with Disabilities Act.
When disability-related issues prevent a worker from adhering to the employer's vaccination mandate, the EEOC said that employers must perform an ad hoc analysis whether the unvaccinated employee poses a "direct threat" to workplace health and safety.
If such a threat exists, employers must then seek to provide a reasonable accommodation, like teleworking, to mitigate the health risk. The employer can only prevent the worker from physically entering the worksite where the direct threat they pose to others "cannot be reduced to an acceptable level."
For religious objectors to a vaccine, employers must also try to accommodate the person's beliefs, so long as it doesn't pose an "undue hardship." Courts have traditionally defined this as "having more than a de minimis cost or burden on the employer."
The EEOC also said in its new guidance that the actual process of an employee receiving an FDA-approved COVID-19 vaccine won't be considered a "medical examination" for purposes of the Americans with Disabilities Act, either for employers that administer it or who contract with a third party to do so. (The ADA places limits on employers' ability to make workers take medical tests or otherwise seek out medical information about them).
An employer may alternately require workers to offer proof that they have been vaccinated against COVID-19, since that isn't an inquiry related to a person's disability and "is not likely to elicit information about a disability."
However, the EEOC still urged caution if the employer plans to vaccinate "in house" and as part of that, ask employees medical questions prior to their vaccination.
Per the EEOC, pre-screening vaccination questions may then violate the ADA's prohibition against inquiries likely to elicit information about a disability. If an employer administers the vaccine, it must show that such pre-screening questions are "job-related and consistent with business necessity.'"
However, certain follow-up questions could run afoul of the ADA if the employer seeks that kind of information. An example of one such query that the EEOC included in its guidance is if an employer asks a worker why he or she hasn't been vaccinated.
Additionally, the EEOC said that employers who administer a COVID-19 vaccine or ask employees to show they've been inoculated aren't triggering the Genetic Information Nondiscrimination Act, which shields people from workplace bias based on their genetic information.
Should an employer require its employees to provide proof that they have received a COVID-19 vaccination (from a pharmacy or their own health care provider), the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA,
However, employers could run afoul of GINA if administering the vaccine requires screening questions that seek genetic information, according to the EEOC. If the pre-vaccination questions about genetic information (such as family medical history of reactions to certain medications/allergies), then asking them implicates GINA and employers who want to ensure that employees have been vaccinated may want to request proof of vaccination, instead of administering the vaccine themselves.
The new guidance seems to push employers in the direction of sending their employees to their health care professional or a pharmacy for the vaccine, instead of offering it at the workplace.
Roberta "Robin" Cross
Township Attorney
The Woodlands Township
2801 Technology Forest Blvd.
The Woodlands, Texas 77381
(281)210-3800
[sigleaf]
rcross@thewoodlandstownship-tx.govmailto:rcross@thewoodlandstownship-tx.gov
DIRECT:281-210-3484
CELL: 832-791-6424
FAX: 281-210-3499
CONFIDENTIALITY NOTICE: This communication is intended only for the use of the individual or entity to which it is addressed and may contain information which is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this communication, you are notified that any use, dissemination, distribution, or copying of the communication is strictly prohibited. Sender requests a reply or notification by other immediate means of the mis-delivery.
ATTENTION PUBLIC OFFICIALS:
A "reply to all" of this email could lead to violations of the Texas Open Meetings Act. Please reply only to Sender.
From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Huggard, Jennifer
Sent: Thursday, December 17, 2020 5:00 PM
To: disasterrelief@lists.imla.org
Subject: [EXTERNAL][Disasterrelief] EEOC guidance on vaccinations
FYI, yesterday, the EEOC updated its guidance for employers on considerations for mandating vaccines.
It can be found here at item K:
[cid:image003.png@01D6D4A0.B3619120]http://www.dallascitynews.net/
Jennifer Carter Huggard
Executive Assistant City Attorney
Section Head
Employment Law Section
City of Dallas
Dallas City Attorney's Office
1500 Marilla St., 7DN
Dallas, TX 75201
O: 214-670-5622
F: 214-670-0622
jennifer.huggard@dallascityhall.commailto:jennifer.huggard@dallascityhall.com
*****This is an email from an EXTERNAL source. DO NOT click links or open attachments without positive sender verification of purpose. Never enter USERNAME, PASSWORD or sensitive information on linked pages from this email. *****
