COVID-19 Vaccines are Here! Should employers make them mandatory for employees?
With the availability of vaccinations for the general public quickly approaching, many employer are considering whether they should require employees get the vaccine. Like seemingly everything related to COVID-19, the answer to this question is more difficult than it seems.
To address some of these questions, the Equal Employment Opportunity Commission (EEOC) has release new guidance on the topic. We’ve summarized this guidance in 2 articles. This article (Part I) is focused on the EEOC guidance related to the Americans with Disabilities Act (ADA). Part II focuses on the EEOC guidance related to Genetic Information Nondiscrimination Act (GINA).
Summary of EEOC guidance released on 12/16/20 (Vaccinations and the ADA):
- Is administering an FDA approved COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts) considered a “medical examination” for purposes of the ADA?
Short answer, No. However, read on…
- The CDC recommends screening before administering to ensure that there is no medical reason that would prevent the person from receiving the vaccination. Are these pre-screening questions subject to the ADA standards for disability-related inquiries?
Yes, these pre-vaccination medical screening questions are likely to elicit information about a disability, which means those questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. So, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer would need to 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.
And don’t forget, the ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.
There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.
- First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d). If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
- Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
- Is requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
No. There are many reasons that may explain why an employee has not been vaccinated, so simply requesting proof of vaccination is not “likely to elicit” information about a disability. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit disability information and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires 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.
- If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?
Since COVID pre-screening questions may screen out an individual with a disability, employers 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.” 29 C.F.R. 1630.2(r). This means, Employers need to conduct an individualized assessment of four factors in determining whether a direct threat exists:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- 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. However, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
- If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
First, it’s important to know that EEOC guidance says the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must go through the “reasonable accommodation” analysis, similar to the disability analysis discussed in the bullet above.
- What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.
Should you have any questions about the implementing vaccination policies or procedures or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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