As COVID-19 vaccinations become more widely available, many employers would like to make vaccination mandatory for all employees, both to minimize contact tracing and employee privacy issues now burdening human resource departments– and, more importantly, to maximize the health and safety of employees and customers alike. The federal government, through the Equal Employment Opportunity Commission (EEOC), has issued guidance that includes FAQs on COVID-19 vaccine administration in the workplace. With certain restrictions, the guidance does allow for blanket vaccination of employees, and most states are deferring to this EEOC standard. This post discusses some of the issues to consider when crafting vaccination policies, but, like all guidance relating to COVID-19, be prepared for changes as more data becomes available during this pandemic.
Mandatory Vaccinations? Yes, but…
Broadly, the EEOC’s guidance provides that employers can, in many circumstances, compel employees to obtain a COVID-19 vaccine, a position bolstered by the conclusion that a vaccination requirement is not by itself a “medical examination” under the Americans with Disabilities Act (ADA). But there are caveats.
Caveat #1: Is there a Direct Threat?
The first limit to compelling employee vaccination is the rule that employers may only do so if they determine that the employee poses a direct threat under the ADA’s “direct threat” analysis. A direct threat analysis is an individualized assessment that considers the following four factors: (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. In practice, this means that an employer has to determine that an employee would pose a direct threat to themselves or others in the workplace if they did not get vaccinated. As an example, an employee who normally (i.e., pre-COVID-19) works remotely full-time and does not interact with co-workers or customers could not likely be forced to take the vaccine; by contrast, the now more typical employee who is only temporarily remote and may still have some occasional interactions with co-workers and customers, will require a more nuanced analysis that integrates the above four factors into the decision.
Caveat #2: Disability and Religious Accommodations
Just like many other workplace policies, an employer’s mandatory vaccination requirement will be subject to possible accommodations for disability and/or religious reasons. Some employers (e.g., healthcare providers) will already be familiar with the issues these types of accommodation requests raise because they arise each year from workers required to obtain seasonal flu vaccinations.
The EEOC cautions that managers and supervisors who are responsible for communicating with employees about compliance with any vaccination requirements, should be trained both to recognize legitimate disability accommodation requests and to make reasonable individualized assessments of them. Requests for accommodations may come in a variety of ways, including verbally or in writing, and employees do not have to use any “magic words,” adding to employer burdens. Managers and supervisors should be prepared to engage in an interactive process with employees once an accommodation request has been made, and also know when it is appropriate to escalate requests internally to human resources professionals or outside counsel.
If an individual who is unvaccinated would pose a direct threat in the workplace and cannot be vaccinated because of a disability, the employer should then determine if there is a way to provide a reasonable accommodation that, without undue hardship, would eliminate or reduce the risk of the employee posing a direct threat. If it is not possible to reduce or eliminate the direct threat posed by the unvaccinated individual in the workplace, then the employer can exclude the employee from physically entering the workplace. In such cases, the employer must still offer a reasonable accommodation to the employee, such as working remotely, as long as the accommodation does not, once again, cause an undue hardship. Further, employers should be mindful that even if they decide to exclude an employee who refuses vaccination from the workplace, the employee may still be able to take advantage of other leave policies available to them, such as Paid Time Off.
As for employees whose religious practices prevent them from obtaining a COVID-19 vaccine, employers have a lower accommodation burden because religious accommodations are governed by rules promulgated under Title VII, which are less demanding than those for disabilities under the ADA. Under Title VII, an employer can show undue hardship if a religious accommodation imposes more than a de minimis, or minimal, cost or burden on the employer, a standard that is relatively easy for employers to meet.
Caveat #3: Vaccine Availability
While not expressly covered in the EEOC guidance, employers will need to be mindful of the practical implications of requiring vaccinations given local vaccine supply and availability. For example, a policy mandating that all on-site employees obtain the vaccine before reporting back to work at a time that vaccines are not widely available, may not only result in a lack of available employees due to the limited availability, it would also likely be struck down in court if challenged.
Caveat #4: Union Issues
Collective bargaining agreements can be, and often are, more restrictive than EEOC guidelines. For any employees who are part of a collective bargaining unit, requiring mandatory vaccination may be subject to restrictions under the National Labor Relations Act of 1935. So while the EEOC has said vaccines can be mandatory, this is likely a subject of mandatory bargaining under collective bargaining agreements and would require notice and bargaining. Employers should consult these agreements and determine whether medical exams and other health related issues are addressed, before making any decisions affecting unionized employees.
Proof of Vaccination
Separately from the above issues, employers can at anytime require their employees to provide proof that they obtained the vaccine. Care should be taken to ensure employees do not provide other medical information that may come from a healthcare provider along with such proof. If such other health information is received, employers must take steps to maintain confidentiality and keep the documentation in a separate medical file in accordance with ADA standards.
Other Common Issues
If an employer administers the vaccine itself or contracts with a third party to administer the vaccine for the employer’s workforce, then certain pre-vaccination screening questions may also implicate ADA concerns, including having to be “job-related and consistent with business necessity.” Concerns under the Genetic Information Nondiscrimination Act (GINA) may also arise, for example, to the extent any screening questions concern family history. Until more information is known about the required screening questions for administering the vaccine, a better approach may be to have employees obtain the vaccine and proof of vaccination from an employee’s own healthcare provider or other non-employer-related third party.
The arrival of the COVID-19 vaccine marked a significant step in the battle against the pandemic. While the EEOC’s guidance can help employers navigate their options in implementing workplace vaccination policies, ultimately employers will have to carefully assess whether a mandatory vaccination requirement will make sense for their own particular workforce and work environment, even if allowed under current regulations. And, not unexpectedly, employers will not be spared the burden of properly addressing legitimate accommodation requests or of providing comprehensive plan information to employees. Specific questions regarding the COVID-19 vaccine and the workplace should be directed to legal counsel. We at Hinckley Allen are here to assist.