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As the first COVID-19 vaccinations are becoming available for public use, employers across the US are fretting over whether to mandate COVID-19 vaccinations among their workforce. On Wednesday, December 16, 2020, the Equal Employment Opportunity Commission (EEOC) weighed in with much-anticipated guidance for employers considering their options. Spoiler alert: YES, employers may require COVID-19 vaccinations, but they must be careful to navigate a host of minefields in doing so, or they could find themselves violating various anti-discrimination and leave laws.
For employers considering mandatory COVID-19 vaccinations for their staff:
- Having a blanket “mandatory vaccination” policy is not illegal per se, and asking or requiring employees to show proof of receipt of a COVID-19 vaccination is NOT a “disability-related inquiry” under the Americans with Disabilities Act (ADA) or a request for “genetic information” under the Genetic Information Nondiscrimination Act (GINA).
- If a mandatory vaccination policy screens out or tends to screen out individuals with a disability, the employer must support the policy with an analysis that considers whether an unvaccinated employee would pose a direct threat due to the significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. We note that the EEOC has already determined in prior guidance that COVID-19 poses a direct threat to employees in the workplace.
- BUT employers can get tripped up when an employee refuses to be vaccinated.
- Unsurprisingly, if an employee is unable to receive a COVID-19 vaccination because of a disability or sincerely held religious belief, the employer must consider reasonable accommodations consistent with the ADA, Title VII or other laws before excluding the employee from the workplace. On the other hand, employers are not required to accommodate an employee’s secular beliefs or generalized fears about vaccines.
- And yet, asking an employee why he or she did not receive a vaccination MAY be considered a disability-related inquiry under the ADA, or may implicate GINA. Such questions can only be asked when “job-related and consistent with business necessity,” including when the questioner has a reasonable belief that the employee could cause a “direct threat” to the health and safety of him or herself or others. This can be a difficult threshold to meet.
- So how should an employee walk this fine line? One option will be to ask — without requiring the employee to provide specifics — whether the employee’s inability or refusal to obtain the vaccination is based on a medical condition or sincerely held religious belief. If the employee answers “yes” to either reason, substantiating documentation can then be requested from a medical or religious professional, if needed. Employers considering mandatory vaccination policies must therefore be prepared to appropriately address employee refusals, and, where necessary, engage in the interactive process applicable to assessing whether a reasonable accommodation is possible.
- Further, even if no reasonable accommodation is possible, and employers may lawfully exclude the employee from the workplace, employers must continue to determine if other rights apply under the equal employment opportunity laws or other federal, state or local authorities. This may include accommodations permitting telework, or providing leave under the Families First Coronavirus Response Act or other leave law or company policy.
- Finally, employers who request proof of vaccination should warn the employee not to provide genetic information or medical information as part of the proof, to avoid implicating the ADA or GINA. And employers should keep any employee medical information obtained in the course of the vaccination program confidential.
For employers who wish to administer COVID-19 vaccinations to their employees:
- Employers can take some comfort in the EEOC’s stated position that administration of the COVID-19 vaccination itself is NOT a “medical exam” for purposes of the Americans with Disabilities Act. In other words, employers may administer vaccinations on-site without implicating ADA concerns.
- However, asking employees pre-screening questions as a condition to receiving the vaccination — e.g., when asking employees why they cannot be vaccinated — MAY constitute a “disability-related inquiry”under the ADA or a request for genetic information under GINA. Thus, an employer would need to determine that an employee’s failure to answer pre-screening questions will pose a “direct threat” to the health and safety of him or herself or others. This may be a difficult threshold to meet. The EEOC offers two workarounds to address this particular concern:
- First, the employer may make the vaccination program truly voluntary — since that way employers are offered more leeway to ask what may otherwise be considered “disability-related inquiries” without running afoul of the ADA’s mandates. However, a voluntary program might defeat the purpose of offering the vaccination at work in the first place.
- Second, the employer can direct employees to get “pre-screened” for the vaccine by a doctor, pharmacist, or other third party with whom the employer has no pre-existing contractual relationship, before obtaining the vaccine on-site. Such inquiries will then fall outside the ADA’s limitations on “disability-related inquiries.”
In all situations:
- Managers and supervisors 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.
- Managers and supervisors should similarly be reminded that it is unlawful (1) to disclose that an employee is receiving a reasonable accommodation and (2) to retaliate against an employee for requesting an accommodation.
- Employers should familiarize themselves — or consult with legal counsel about — the undue hardship standards applicable to requests for reasonable accommodation for disability and for sincerely held religious beliefs. Employers should ensure that appropriate, individualized undue hardship analyses are performed when an employee requests an accommodation, which can help defend a challenged employment action later.
- Employers should be mindful to ensure employees have been afforded every opportunity for leave or other time off before terminating an employee’s employment because of the employee’s failure to be vaccinated.
Navigating the patchwork of federal equal employment opportunity laws — not to mention applicable and sometimes overlapping state or local laws — can be complex. Experienced employment counsel can advise on effectively responding to employee inquiries and complaints, educate HR staff on leave and accommodation best practices, and help craft effective and legal policies designed to help organizations achieve their business goals.
For more information or questions pertaining to your company’s specific situation, please reach out to Jennie Woltz at firstname.lastname@example.org or Benjamin Folkinshteyn at email@example.com.