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12.17.2020 | Legal Advisory

With the FDA’s recent approval of Pfizer-BioNTech’s COVID-19 vaccine, the FDA’s Vaccines and Related Biological Products Advisory Committee’s Advisory Council’s scheduled vote of today on the use of Moderna’s COVID-19 vaccine for emergency use, and the possibility of vaccines being available to the general public as soon as 2021, employers are now considering whether to require their employees to receive a vaccine once available. 

Recent guidance from the Equal Employment Opportunity Commission (EEOC) makes clear that yes, employers can require their employees to receive a COVID-19 vaccine before returning to work, with two major exceptions: disability and sincerely held religious belief.

Exceptions for disability and/or sincerely held religious belief. If an employee indicates that he or she is unable to receive a vaccine because of a disability or a sincerely held religious belief, the employer will be required to make an individualized assessment to determine whether a “direct threat” scenario exists (for example, a determination that an unvaccinated individual will expose others to the virus at the worksite). If a direct threat exists, the employer must attempt to provide a reasonable accommodation (absent undue hardship) to eliminate or reduce the direct threat. As with all accommodation assessments, employers should engage in a flexible, interactive process to identify workplace accommodation options for either a disability or religious beliefs that do not constitute an undue hardship. If the direct threat cannot be eliminated or reduced by a reasonable accommodation, the employer can exclude the employee from the workplace. 

Required Testing and Pre-Screening Questions. The Centers for Disease Control has advised that health care practitioners must ask certain pre-screening questions before administering a COVID-19 vaccine. However, if an employer requires employees to obtain a vaccine through the employer (or a contractor on the employer’s behalf), these questions could implicate the Americans with Disabilities Act’s (ADA) provision regarding impermissible disability-related inquiries, because pre-vaccination medical screening questions are likely to elicit information about a disability. 

In order to ask such questions, an employer must show that the questions are “job-related and consistent with business necessity.” To meet this standard, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a “direct threat” to the health or safety of her or himself or others.

To avoid this issue, employers have two options:

1. Employers can make vaccination available on a voluntary basis, and an employee’s decision to answer pre-screening, disability-related questions would also be voluntary. An employer may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
2. Employers may consider requiring employees to obtain a vaccine from their medical providers or local pharmacies – and provide proof of the same – in which case the “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply. However, employers should proceed cautiously with follow-on questions if an employee does not provide proof of vaccination, as those questions also may elicit information about a disability and implicate the ADA provisions relating to disability-related inquiries. Accordingly, employers should warn employees not to provide any detailed personal medical information when submitting proof of the receipt of a vaccine.

Confidentiality Concerns. As with all medical information, employers should keep information related to COVID vaccinations confidential and in a file separate from each employee’s personnel file. In addition, consistent with COVID-screening questions, employers should be cognizant that any vaccine pre-screening by the employer (or a contractor of the employer) should avoid inquiries relating to family medical history, as those inquiries might violate the Genetic Information Notification Act (GINA). Questions relating to family medical history may be asked only by an employee’s health care provider without implicating the provisions of GINA.

This advisory was prepared by Liam O’Connell, Chris Lindstrom, David Rubin, Natalie Cappellazzo, and Mariel Smith of Nutter’s Labor, Employment and Benefits practice group. If you would like additional information, please contact one of the authors or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.