NOTE: On Sunday December 20, 2020, Ken Winkler was featured in the Atlanta Journal Constitution’s article, “Employers must weigh many issues in considering vaccine mandates.”
The U.S. Equal Employment Opportunity Commission has responded to growing questions about an employer’s legal right to require employees to obtain COVID-19 vaccines. The EEOC has updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” It added answers to a variety of questions pertaining to COVID-19 vaccine medical pre-screening questions and employer accommodations for those unable to receive a vaccination.
The New Guidance Provides a Roadmap to Mandated Testing
The EEOC’s guidance analyzes the legality of mandatory testing under the Americans with Disabilities Act and Title VII of the Civil Rights Act. Based on the guidance, below are 5 key takeaways that employers should be mindful of:
The guidance explains two situations where this standard does not apply:
First, if an employer offers COVID-19 vaccinations to employees on a voluntary basis (meaning the employees choose whether to be vaccinated), the employee’s decision to answer pre-screening questions also must be voluntary.
- COVID-19 vaccination is NOT a medical examination. The EEOC explains that “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.”
- COVID-19 vaccination is NOT a medical examination. The EEOC explains that “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.”
Second, the “job-related and consistent with business necessity” requirement does not apply if an employee receives an employer-required vaccination from a third party administering the vaccine that does not have a contract with the employer, such as a pharmacy or other health care provider.
- Requiring proof of vaccination is not a disability related inquiry. Because requesting proof of receipt of a COVID-19 vaccination is unlikely to elicit information about a disability, it is not a disability-related inquiry. The EEOC cautions, however, that subsequent questions (such as asking why an individual did not receive a vaccination), may elicit information about a disability and would have to meet the “job-related and consistent with business necessity” standard.
- Employers must consider reasonable accommodation. There are two recognized exemptions to mandatory vaccination: a medical exemption and a religious exemption.
If an employee raises an objection to vaccination due to either of these exemptions, it is obligated to consider ADA and religious accommodations. In other words, an employer may not automatically bar the employee from the workplace. Rather, it must prove the lack of a reasonable accommodation that would eliminate or reduce the direct threat risk that an unvaccinated employee would pose in the workplace.
The guidance provides that employers may rely on CDC recommendations when deciding the availability of an effective accommodation that would not pose an undue hardship.
- Employers may not automatically terminate employees who refuse to take the vaccine. If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then an employer may lawfully exclude the employee from the workplace. However, this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEOC laws or other federal, state, and local authorities.
EEOC guidance on COVID-19 vaccinations
The EEOC’s guidance on COVID-19 vaccinations provides employers with some clarity as to their rights to require COVID-19 testing. Many more legal questions remain unanswered. Because widespread access to the vaccine is likely to be in the distant future, most employers will have some time before they have to decide whether they will mandate COVID-19 vaccines or take another approach to health or safety in the workplace.
Practical Considerations
However, the practical considerations of mandating COVID-19 vaccines are complex and, in some cases, may address the safety of the individual employee. There are many questions employers should begin to think about:
– What do I do if not all employees have access to the vaccine at the same time?
– What do I do if an employee refuses to take the vaccine?
– Will I allow remote work?
– Am I willing to fire a good employee who refuses to take the vaccine?
– What do I do about backlash if I require vaccination?
– What do I do about backlash if I don’t require vaccination?
– Who is paying for the vaccine?
– What happens if an employee has a bad reaction?
– How can I persuade employees to get vaccinated?
– Can I offer incentives, such as direct payment?
The COVID-19 vaccination is going to be a challenging issue for employers. Stay tuned for additional analysis and updates on this topic.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
