Our inboxes and newsfeeds are flooded with information regarding the 2019 novel coronavirus (COVID-19) vaccine. For many, the availability of the vaccine is a welcome development while others are viewing the vaccine cautiously. Meanwhile there is still a fair amount of uncertainty for employers regarding the availability of the vaccine and what, if any, expectations federal, state or local governments will have with respect to an employer’s role in the vaccination process. Here is what we know now:
EMPLOYERS CAN MANDATE VACCINATION BUT…
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying that employers are lawfully permitted to require employees to be vaccinated before returning to work, subject to a number of exceptions.
The EEOC guidance reiterates an employer’s obligation to accommodate employees who have disabilities that would otherwise interfere with the employee receiving the COVID-19 vaccination. Under these circumstances an employer may have to exempt such an employee from the vaccine mandate. Examples of such disabilities could include a history of allergic reaction to vaccine ingredients, or an employee who is pregnant or nursing who has been advised against vaccination from her doctor.
Notably, the EEOC acknowledged that under these circumstances an employer may nevertheless deny a disability-related accommodation where there is no available alternative that would alleviate the “direct threat” posed by an unvaccinated employee. A direct threat is one that poses 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 must conduct an individualized assessment to determine whether a direct threat exists taking into consideration:
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
If such threat exists, the employer may be able to exclude the employee from the workplace but may need to provide an alternative accommodation, such as a remote work arrangement. With many employers having already waded through the use of protective equipment, masks, and social distancing, we suspect that successfully establishing the existence of a “direct threat” will be a heavy burden for even the most high-risk workplaces.
Employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy. Similar to medical accommodations, an employer who knows that a sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination, must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer. Notably, having an “anti-vax” belief alone is not sufficient – the belief must be grounded in religion in order to qualify for protection. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, 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.
The EEOC sagely advises that managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability or sincerely held religious belief and know to whom the request should be referred for consideration.
Mandatory Vaccination Policies Trigger Additional Obligations Under the ADA
The Americans with Disabilities Act (ADA) restricts employers’ ability to conduct medical examinations and request medical information from employees. The EEOC’s guidance clarifies that the COVID-19 vaccination is not a medical examination. Therefore, employers may request that employees provide proof of vaccination. However, because pre-vaccination medical screening questions may elicit medical information about a disability, an employer who asks these questions must meet the standard of being “job-related and consistent with business necessity.” The guidance states that employers can meet this standard if they 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.” In other words, the employer must reasonably believe that transmission of COVID-19 is a threat to the safety of the employee or others with whom the employee has contact.
The guidance notes that employers can avoid any issues regarding disability-related inquiries if they require employees to be vaccinated by their own medical providers or encourage, but do not require, employees to be vaccinated.
Vaccines are not readily available, so employers have time to evaluate whether a mandatory vaccination protocol is right for your workforce.