(December 22, 2020) - Given the current COVID-19 vaccine distribution plans, it may be some time before most private employers (outside of those that employ healthcare or other essential workers) have to grapple with adopting and applying policies for employee vaccinations, including a possible mandatory vaccination policy. Nevertheless, many employers have already begun to prepare for how to deal with employees who may be hesitant about being inoculated with the COVID-19 vaccines recently approved by the FDA. Fortunately, the federal Equal Employment Opportunity Commission (EEOC) recently issued an updated technical assistance bulletin that addresses many of the pressing questions arising under the federal Equal Employment Opportunity laws related to the COVID-19 pandemic
Employers formulating or refining their vaccination policies should consider the EEOC's guidance, which is summarized below, in addition to any applicable state or local laws.
Most notably, the EEOC appears to take the view that federal discrimination laws do not prevent employers from adopting mandatory vaccination policies, subject to certain legally protected exceptions for disability and sincerely held religious beliefs. The other key takeaways from the EEOC's updated guidance are as follows:
- Administration of a COVID-19 vaccine in and of itself is not a medical examination that implicates the ADA's provision on disability-related inquiries. Employers should note, however, that pre-screening vaccination questions or follow-up inquiries regarding why an employee did not receive a vaccination could elicit information about a disability and, therefore, can only be pursued if they are "job-related and consistent with business necessity." While the EEOC's guidance suggests that it is permissible to require vaccinations in order to return to the workplace, the employer cannot exclude an employee who is not vaccinated unless the employer can show that the presence of the unvaccinated employee would pose a direct threat due to a "significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation." As in all instances in which employers must weigh the availability of accommodations, the employer must conduct an individualized assessment. Specifically, in this context, the employer should consider the following four factors to determine whether a direct threat to others at the workplace exists: 1) the duration of the risk; 2) the nature and severity of potential harm; 3) the likelihood that potential harm will occur; and 4) the imminence of potential harm. If the employer determines that an unvaccinated worker poses a direct threat at the workplace, it can only exclude that employee if there is no way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat.
- If an employee advises that he or she has a disability that precludes vaccination, and there is a direct threat that cannot be reduced to an acceptable level, the employer may exclude the employee from the workplace. This does not mean, however, that the employee can be automatically terminated. Instead, the employer must provide a reasonable accommodation unless doing so poses an undue hardship. The inquiry as to accommodation must, as always, be done on an individual basis. For some employees, permitting remote work may be an accommodation. If that is not possible, employers also may need to consider transferring the employee to an open vacant position, for which the employee is qualified and where vaccination is not required, or a leave of absence. It should also be noted that this analysis may require ongoing evaluation. The prevalence in the workplace of employees who already have received COVID-19 vaccinations and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.
- The CDC directs healthcare providers to make certain inquiries before administering a vaccine. Those questions are likely to elicit disability-related information. An employer that adopts mandatory vaccination programs will not be permitted to ask pre-vaccination screening questions unless it can show these disability-related inquiries are job-related and consistent with business necessity. To meet this standard, the employer would need to show that an unvaccinated employee would pose a direct threat to the health or safety of her or himself or others as noted above.
- Alternatively, if an employer offers a vaccination program on a voluntary basis, responding to pre-screening questions also must be voluntary. If an employee refuses to answer pre-vaccination screening questions, the employer may decline to administer the vaccine. Employers cannot, however, retaliate or take adverse employment actions against employees who refuse to answer pre-screening questions. Similarly, if an employee gets the COVID-19 vaccine from a third party that does not have a contract with the employer, the ADA "job related and consistent with business necessity" restrictions on disability-related inquiries would not apply to the third-party's pre-vaccination medical screening questions.
- While this point is not vaccine-related, it bears repeating that the EEOC does not view adherence to CDC guidance about symptomatic employees as problematic under the ADA. Employers can send symptomatic employees home without running a risk that doing so can give rise to a claim of disability discrimination under the ADA.
Religious Objections to Vaccinations
Title VII requires employers to accommodate employees who have sincerely held religious beliefs that preclude vaccination unless doing so poses an undue hardship. The Title VII undue hardship standard is less onerous than the ADA standard; the employer need only show that providing the accommodation imposes more than a de minimis cost or burden. Nevertheless, given the need for an individualized accommodation inquiry, employers should proceed with caution before denying the accommodation on the grounds of undue hardship. Employers should also generally assume that the employee's professed religious belief is sincere, and only question the belief when there is an objective basis to do so, in which case it is permissible to seek supporting information.
An employer does not violate the Genetic Information Nondiscrimination Act (GINA) by administering a vaccine or requiring proof of vaccination because doing so does not involve the use, acquisition, or disclosure of employee genetic information. As noted above, however, pre-vaccination medical screening questions are likely to elicit information about genetic information, such as the immune system of family members. To the extent pre-vaccination questions elicit genetic information, such as family medical history, it may be preferable for employers to require proof of vaccination that has been administered by a third party rather than administering the vaccine themselves. If the employer requires its employees to provide proof of vaccination, it should also instruct the employees not to provide any genetic information when furnishing such proof.
As always, employers should be mindful of two things when dealing with EEOC guidance. First, the guidance does not have the binding effect of a statute or a published regulation. It is possible the courts will differ in construing these laws as the inevitable COVID-19-related and vaccine-related lawsuits are litigated. But one would have to assume that an employer will fare better in attempting to show its good faith if it can explain its reliance on the EEOC's wisdom. Second, the federal laws are not the be all and end all in the employment field. Employers in states and cities with their own laws must endeavor to comply with the potentially differing requirements of those laws.
When evaluating whether to implement a voluntary or mandatory vaccination policy, employers also will need to consider a variety of other issues, including whether there is a unionized workforce subject to a collective bargaining agreement, whether employees who object to vaccinations are engaging in protected concerted activity, OSHA compliance, workers' compensation (if an employee develops complications from a mandatory vaccine), and wage/hour compliance when administering the vaccine. Fortunately, as noted above, most employers will have ample time to consider these issues before a vaccine becomes broadly available.
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