ATTENTION: ALL EMPLOYERS
CAN EMPLOYERS REQUIRE ITS EMPLOYEES TO GET A COVID-19 VACCINE?
Yes, says the EEOC (with important exceptions)
On the heels of the first COVID-19 vaccines’ approval by the Federal and Drug Administration, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its previously published COVID-related guidance to address how employers should handle related workplace issues. While the guidance, issued on December 16, 2020, does not affirmatively state that the EEOC “blesses” mandatory vaccination policies, implicit in the EEOC’s guidance is that such policies are legal – but that employers must tread carefully to ensure they do not violate other laws. This e-alert is intended to help employers decide whether a mandatory vaccination policy is appropriate and to assist employers in preparing for potential obstacles.
Importantly, employers should be prepared that employees may object to getting the vaccine for various reasons – disabilities, religious reasons, potential side effects or just a preference not to be vaccinated. While the EEOC guidance only addresses some of these considerations, we have set forth the below considerations in all of these areas.
If an employee raises a disability-related objection to a mandatory vaccine policy, the employer can:
- Confirm the disability with the employee’s healthcare provider, through a paperwork process under the Americans with Disabilities Act (the “ADA”); and
- Exclude the employee from the workplace if the employer can demonstrate that the employee is a “direct threat to the health or safety of other individuals in the workplace.” According to the EEOC, the presence of a “direct threat” is evaluated utilizing four factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur and (c) the imminence of the potential harm. The EEOC states that “the conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” This may be difficult to prove if, for example, the employee can continue to follow pre-vaccine protocols (e.g. mask-wearing, social distancing) and the spread of COVID-19 pre-vaccine with such protocols was minimal. Each situation will have to be analyzed on a case by case basis.
Finally, and perhaps most importantly, an employee who is deemed to be a direct threat can only be excluded if there is no way to provide him/her a reasonable accommodation (absent undue hardship) to eliminate or reduce the threat. For example, can this employee work from home or farther apart from others who received the vaccine? The EEOC warns that even if there is a direct threat that cannot be reduced to an acceptable level, “this does not mean the employer may automatically terminate the worker.” (Emphasis added.) Instead, “[e]mployers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.” This is why employers must proceed carefully and seek legal counsel to navigate these situations.
According to the EEOC guidance, if an employer requires vaccinations but is then notified that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must proceed as follows:
- The employer must provide a reasonable accommodation for the religious belief, practice or observance, unless it would pose an undue hardship under Title VII of the Civil Rights Act. Note that the definition of religion is broad and protects beliefs, practices and observances that may be unfamiliar. Thus, according to the EEOC, 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.
- As outlined above, the EEOC also states, however, that even if the employer cannot provide a reasonable accommodation, “[t]his 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.” Again, reason to act with caution.
What should employers do if they want to require the vaccine, but employees object on other grounds that are not based on a disability or religious reason? While the EEOC does not cover these scenarios, employers should consider a number of issues:
- The consequences: What will the result be for employees who refuse to get the vaccine? Firing employees or refusing to allow them to enter the workplace for expressing their preference not to be vaccinated could lead to morale and employee turnover issues.
- The federal labor laws: If coworkers join together in opposing a mandatory vaccination, it may be considered protected activity under federal labor law. If so, retaliatory action would be prohibited. Consult counsel if such a circumstance arises.
- Worker’s compensation: If employers require the vaccine and an employee suffers from a side effect, even if mild, the employee may need time off from work and, depending on the severity of the side effects, it could trigger a workers’ compensation claim.
- Nature of the threat: Employees may argue that they pose no greater threat to the workplace if they do not vaccinate, assuming they continue to follow all pre-vaccine protocols and the COVID-19 transmission rate in the workplace was already low, making it difficult for employers to justify requiring the vaccine.
Given these considerations, many employers are opting to encourage employees to get the vaccine, but not to require it.
OTHER IMPORTANT TAKEAWAYS FROM THE EEOC GUIDANCE:
Finally, the EEOC covered a few other notable points in its December 16th guidance that are important to highlight:
- Guidance is provided on pre-screening questions:
- Employers that administer the vaccine themselves, or contract with a third-party to do so, are required to take additional steps.
- The CDC recently published guidance recommending that employers conduct a screening before vaccination of employees, which consists of exploring whether the employee may have a medical reason not to be inoculated. Such screenings likely constitute a “medical examination” under the ADA, and therefore can only be utilized if “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 the individual or others (using the above four factors).
- Screening questions need not meet the standard that they are “job related and consistent with business necessity” only where either: (1) the vaccine is voluntary OR (2) the employee is screened by an independent third party (like a private lab or pharmacy). However, if the vaccine is voluntary, the employer may not require that the employee answer the pre-screening questions. In that instance, the employer can decline to administer the vaccine and may not retaliate against the employee for refusing to answer the questions.
- Employers can ask whether someone has been vaccinated: The EEOC’s guidance is clear that employers can ask employees whether they have received the COVID-19 vaccine without running afoul of any civil rights laws. Employers can also ask employees to present proof of vaccination without triggering the ADA. Of course, follow-up questions as to why the person was not vaccinated “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
- Employers should keep any medical information learned through “pre-vaccination” questions confidential
As employers can see, there are a multitude of legal landmines in this area. We expect that the EEOC’s guidance will be updated as further scenarios relating to the vaccine play out, and we will provide additional information as appropriate.
If you have any questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney with whom you typically work or call us directly.