With the roll-out of the COVID-19 vaccine for mass consumption, we hypothesized in our piece titled “Can Employers Make Employees Get the COVID-19 Vaccine,” that employers would be able to require employees to get the vaccine subject to limited restrictions. We further noted that our guess was based on the Equal Opportunity Employment Commission’s (EEOC) guidance in regards to the flu vaccine and that the federal agency that has enforcement powers over federal discrimination laws had not yet weighed in on the COVID-19 vaccine specifically.

Well, on December 16, 2020, the EEOC weighed in with its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the Guidance) and confirmed that our hypothesis nailed it! In fact, the Guidance does not even specially address the question as to whether employers can mandate employees have the vaccine, rather, the Guidance jumps right in assuming employers already knew they could have mandatory vaccine policies and goes into the limited restrictions as to when an employer may have to pause and engage the employee in interactive discussion regarding the employee’s medical, religious or other reasons for not wanting the vaccine.

Specially, Section K of the guidance discussion “Vaccinations” and provides a handful of helpful Q&As that succinctly guide employers. Here are the highlights arranged by applicable law consideration:

ADA and The Civil Rights Act of 1964 Regarding Mandatory Vaccinations

How should an employer respond to an employee who indicates the employee is unable to receive the vaccine because of a disability?
The ADA allows employers 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.”  When dealing with a vaccine, which 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.” Employers must then 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 the potential harm.  If an employer determines that an individual who cannot be vaccinated due to 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.

 

How should an employer respond to an employee who indicates the employee is unable to receive the vaccine because of a sincerely held religious practice or belief?
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. “Undue hardship” under Title VII, means having more than a de minimis cost or burden on the employer. Further, 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.

 

The ADA allows employers 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.”  When dealing with a vaccine, which 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.” Employers must then 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 the potential harm.  If an employer determines that an individual who cannot be vaccinated due to 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.

 

What should the employer do if it cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of disability or religious belief?
If an employee cannot get vaccinated because of a disability or religious belief and there is no reasonable accommodation possible, then the employer to exclude the employee from the workplace.  This does not mean the employee is terminated; it means employers need to review the matter and ensure it is complying with all applicable laws. Some may allow termination. Some may require unpaid leave or other accommodations.

 

Americans with Disability Act (ADA)

Is the vaccine a “medical examination” under the ADA?
No because the employer is not seeking information about an individual’s impairment or current health status, which is the case in the event of a drug test, x-ray, CAT scan, etc.
What does this mean for employers? It means that if an employee has a vaccine, even if the employer mandates it, the employer is not required to pay for it if the employer would in the event it was classified as a “medical examination”. Employers should be careful when asking employees any pre-screening vaccination questions, however, because those could elicit information about an employee’s disability that might trigger application of the ADA.

 

What should an employer be sure a third party asked to administer the vaccine do in terms of pre-screening questions to ensure there is no medical reason that would prevent the employee from receiving the vaccine to ensure the ADA is not violated?
The issue here is the type of information related to an employee’s disability that might be elicited through certain pre-screening questions. As such, 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.

 

Is asking or requiring an employee prove they had the vaccine a “disability-related inquiry”?
No. The employer asking for proof of vaccination is unlikely to elicit information about an employee’s disability.

 

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

Is GINA triggered when an employer administers the vaccine to an employee or requires an employee proof of vacation? What about pre-vaccination screening?
No. Administering a to employees or requiring employees to provide proof that they have received a vaccination does not implicate GINA because 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.

Pre-screening is likely to elicit information about a disability and could trigger GINA so employers should be careful when asking such questions.

 

About the Author: Sara Jodka (Member, Columbus) is a member of the firm’s Labor and Employment Department and can be reached at 614-744-2943 or via email at sjodka@dickinsonwright.com.

The post EEOC Confirms Employers Can Mandate Employees Have the COVID-19 Vaccine…With Restrictions appeared first on DW Health Law Blog.