With the recent approval of COVID-19 vaccines and anticipated rollout of inoculations nationwide, employers have begun to ask for guidance regarding whether they can compel employees to receive the vaccinations. On December 16, 2020, the EEOC released guidance confirming that employers may require their employees to be vaccinated for COVID-19 before returning to work. While the EEOC guidance permits mandatory vaccination policies, employers need to be cognizant of major obstacles and potential claims arising from an employee’s refusal to submit to mandatory vaccination such as disability claims (including pregnancy); claims under the Genetic Information Nondiscrimination Act (“GINA”); and those emanating from sincerely held religious beliefs. In light of these potential pitfalls, and where other accommodations can be made to promote workplace safety, employers should consider adopting policies which encourage vaccination without making it mandatory. As a caveat, employers should remember that guidance from public health authorities may change as the COVID-19 pandemic evolves. Employers should continue to follow the most current information on maintaining workplace safety.
Disability Law Implications
The ADA generally prohibits an employer from requiring a medical examination or making inquiries of an employee as to whether that employee is an individual with a disability, or as to the nature or severity of a disability, unless such examination or inquiries are both “job-related and consistent with business necessity.” The EEOC’s guidance makes clear that neither the administration of a vaccination nor the requirement that an employee show proof of vaccination are in and of themselves a “medical examination” or “disability-related inquiry,” and thus do not implicate the ADA. However, if the employer asks follow-up questions such as why an employee has not been vaccinated then the ADA “job-related and consistent with business necessity” standard would be triggered.
Pre-screening questions could invoke the ADA as well. The EEOC explains that there are two circumstances in which pre-screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, employers can offer the vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated)., which means the employee’s decision to answer pre-screening, disability-related questions would also be voluntary. If an employee chooses not to answer these questions, employers may decline to administer the vaccine to them but may not retaliate against, intimidate, or threaten them for refusing to answer the questions.
Second, if an employee receives an employer-required vaccination from a third party that the employer does not have a contract (e.g. Kroger, or CVS) then the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply.
Regardless of whether you meet the “job-related and consistent with business necessity” standard, the ADA requires you to keep any employee medical information obtained in the course of the vaccination program confidential. Employers must be mindful of GINA to the extent any pre-screening questions ask about genetic information, such as family members’ medical histories or immune systems of family members.).
The Vaccine and Sincerely Held Religious Beliefs
Employers should assume religious practices, even those with which they are unfamiliar, are sincerely held and seek to provide reasonable accommodations to the employee to the extent outlined in Title VII of the Civil Rights Act of 1964. Only if an employer has objectively legitimate reasons for questioning the sincerity of a practice should further explanation be requested. Employers are cautioned to tread carefully in questioning an employer’s religious beliefs to avoid discrimination claims.
If an employee cannot get vaccinated for COVID-19 because of a sincerely held religious belief a reasonable accommodation must be provided absent an undue hardship. Bear in mind that in the religious context an undue hardship is defined as more than a de minimis cost which is a lesser standard than undue hardship in the disability context which is defined as an “action requiring significant difficulty or expense.”
Reasonable Accommodation Considerations
A policy of excluding an employee unable to be vaccinated reasons may be lawful. Before excluding an employee from the workplace, the EEOC cautions “the employer must show that an unvaccinated employee would pose a direct threat due to ‘a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers are further advised that they should conduct an “individualized assessment” of four factors in determining whether a direct threat exists: (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. “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If an employer determines that an unvaccinated worker poses a direct threat, the EEOC cautions that it cannot then exclude that employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”
In considering accommodations for either a disability or religious based request, an employer may be obligated to offer the option of remote work (as many have done during the pandemic), or offer leave under other laws or the employer’s existing leave policy. Employers should also evaluate whether allowing unvaccinated workers to work under existing COVID-19 protocols (masking, social distancing, etc.) is a viable option. In so doing, employers should consider the prevalence of workers who have already obtained a vaccination, as well as the potential contact of unvaccinated workers with others whose vaccination status is unknown. If no reasonable accommodation is possible and a direct threat exists, then an employer may exclude the employee from the workplace. Excluding an employee from the workplace due to a failure to receive a vaccination and the absence of any other reasonable accommodation does not mean the employer must or should automatically terminate the employee.
Once available, employers can require their employees to receive the COVID-19 vaccinations before returning to the workplace based on the latest EEOC guidance. Before doing so, however, employers should make sure all prescreening questions are appropriate according to ADA guidelines or choose one of the implementation options which sidestep the “business necessity condition.” If any employee indicates they cannot receive the vaccine for one of the reasons listed above, then employers are required to consider a reasonable accommodation before moving to exclude them from the workplace.
A mandatory vaccination policy carries risk of employment claims and a potential adverse impact on workplace morale and retention. Employer may wish to encourage vaccination in concert with compliance with existing CDC and COVID-19 regulations instead of imposing a mandatory vaccination policy.
If you have any questions regarding how this new guidance may impact your business, please contact O’Hagan Meyer’s Labor & Employment Practice Team by contacting any of our offices nationwide.