Employers may be able to mandate that employees get a COVID-19 vaccination before returning to the workplace. The EEOC has updated its COVID-19 webpage to include a section regarding guidance on whether an employer-mandated vaccination policy would violate various federal laws. While the EEOC guidance does not directly state that mandatory vaccination policies are lawful, it addresses various other employee protection laws predicated on the notion that such a mandate is lawful. According to the EEOC, employers are required to provide a safe workplace in which "....an individual shall not pose a direct threat to the health or safety of individuals in the workplace."
EEOC Published Employer Mandated Vaccinations Guidance
On December 16, 2020, the EEOC updated its “Technical Assistance Questions and Answers” on its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” webpage.
The EEOC’s published statement provides guidance for employers attempting to formulate a workplace safety plan that does not violate the existing EEO laws, including the Americans with Disabilities Act and the Rehabilitation Act, Genetic Information Nondiscrimination Act ("GINA"), Title VII and the Pregnancy Discrimination Act. The EEOC’s statement on COVID-19, written in a question and answer format, should provide enough guidance for employers to begin to fashion a policy that works for their company.
Employer Mandated COVID-19 Vaccinations and the ADA.
The ADA generally prohibits an employer from requiring a medical examination or making inquiries of an employee as to whether the employee has a disability and/or 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 indicates that a well-crafted and executed policy is necessary to avoid violating the ADA.
The vaccination itself is not a medical examination under the ADA.
The EEOC has stated that a vaccination is not an improper medical examination under the ADA. The Commission explained a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.” If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
Prescreening for the vaccination may implicate ADA protections.
Nevertheless, a prescreening vaccination questionnaire may implicate the ADA's provision on disability-related inquiries and impermissibly elicit information about a disability.
Pre-vaccination medical screening questions are likely to elicit information about a disability. 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 needs to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of the employee or others.
By contrast, 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: (1) if an employer has offered a vaccination to employees on a voluntary basis or (2) 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.
Requesting proof of vaccination.
Requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry; however, subsequent questions, such as asking why an employee did not receive a vaccination, may violate the ADA as eliciting protected information about a disability and, therefore, would be subject to the ADA standard that the inquiries be “job-related and consistent with business necessity.”
Unable to be vaccinated.
According to the EEOC’s guidance, the ADA allows an employer to have a qualification standard that includes: “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Nevertheless, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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.” 29 C.F.R. 1630.2(r).
Employers 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 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 individual who cannot be vaccinated due to a disability poses a direct threat at the worksite, 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.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. For example: if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely.
Employers are still expected to engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). According to the EEOC, "the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration."
Employer Mandated COVID-19 Vaccinations, Title VII and Sincerely Held Religious Beliefs
Employees may have religious beliefs, practices or observances that prohibit vaccinations. 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 provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII. 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 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.
If an employee cannot get vaccinated for COVID-19 because of a 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 will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
Employer Mandated COVID-19 Vaccinations and GINA
Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.
The EEOC’s guidance states that administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINAbecause it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. If the administration of the vaccine requires pre-screening questions that ask about genetic information or inquiries seeking genetic information, such as family members’ medical histories. These may violate GINA.
Employer Mandated COVID-19 Vaccinations and the CDC and Other Laws/Regulations
Employers must also look to the CDC and other governing bodies for support. The EEOC’s statement includes the caveat that the company must always look to the CDC and other local, state and federal guidelines for changes to the policies during this pandemic.
State and local governments may provide additional restrictions on the policy both in theory and in application.
In addition, as this pandemic is evolving and more is known, exceptions to the vaccination may need to be further explored. The CDC is still the primary source for medical information. According to the EEOC, employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.
Employers Cannot Summarily Fire Workers for Refusal to Vaccinate.
Notably, nothing in this blog is intended to mean an employer may summarily fire a worker who declines to be vaccinated. According to the EEOC, the employee may still be eligible for unpaid leave or other similar entitlements under federal, state and local laws.
Moreover, mandatory vaccinations may not be necessary for those employees who work remotely, never enter the workplace and have no contact with customers or clients.
Employers Won't Be Able to Enforce Vaccination Requirements Until Widespread Availability of a Vaccination.
It is important to note that it may be some time before vaccinations become available. Thus far, the vaccinations are being distributed to the health care community and first responders. Given this uncertainty and potentially extended timeline for distribution, it may be premature for many private-sector employers to commit to any particular “vaccination/return-to-work” policy immediately. Nevertheless, it is a good idea for companies to begin now to formulate a plan for when the vaccination becomes widely available.
Provided that the COVID-19 vaccination is widely available soon, the workplace may look vastly different in 2021.
For any questions regarding your COVID-19 employment practices, please contact Kristin Tauras at email@example.com.