As the federal and state governments continue to make progress towards distributing the COVID-19 vaccine, employers may wonder what potential issues could arise in the event they decide to make the vaccine mandatory for their employees. The EEOC released some initial guidance on December 16, 2020, with respect to the potential impact of such a policy with respect to compliance with the ADA and avoiding discrimination claims pursuant to Title VII. I’ve summarized some of the key points discussed by the EEOC below:
Administering the Vaccine:
Receiving a vaccine is not considered to be a “medical exam” pursuant to the ADA, and requiring an employee to provide proof that they received the vaccine is not a “disability related inquiry.” However, any medical screening questions that are asked prior to receipt of the vaccine will be subject to the ADA standards for disability-related inquiries. Therefore, an employer should make sure that such questions are “job related and consistent with business necessity.”
If an employee receives the vaccine from a third-party that does not have a contract with his/her employer (e.g. a pharmacy or other health care provider), this aforementioned restriction on disability-related inquiries would not apply to screening questions asked by that third-party. This may make a third-party distribution process more attractive to employers who make the vaccine mandatory in the event that medical screening questions become common prior to inoculation. Under any circumstances, an employer must keep any employee medical information it does receive confidential pursuant to the ADA.
Addressing disabled employees who cannot take the vaccine:
Certain employees may inform their employer that they are unable to receive the COVID-19 vaccine due to a disability. Notably, the ADA has a qualification standard which contains “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, in the event that a safety-based qualification standard (e.g. a mandatory vaccine policy) tends to screen out a disabled individual, the employer would need to show that the unvaccinated employee poses 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.” See 29 CFR 1630.2(r).
A direct threat would include a determination that an unvaccinated individual would expose others to COVID-19 at the workplace. However, if an employer determines that a direct threat exists, the employer cannot exclude the disabled employee from the workplace (or take any other action) unless the employer is unable to provide a reasonable accommodation, absent undue hardship, that eliminates or reduces the risk so the unvaccinated employee is no longer a direct threat.
If the direct threat cannot be acceptably reduced, the employer may exclude the employee from entering the workplace, but that does not necessarily mean the employee can be terminated. The employee may have other rights under the EEO laws or other federal, state, and local authorities, such as, for example, the opportunity to perform his/her job remotely. Thus, it is important to train managers and supervisors to recognize such an accommodation request in the context of compliance with a mandatory vaccination policy so it can be properly examined.
Addressing employees who may reject the vaccine for religious reasons:
An employer who is on notice of an employee’s sincerely held religious practice or belief that would prevent him/her from taking the vaccine must provide a reasonable accommodation unless it would cause undue hardship pursuant to Title VII. If no reasonable accommodation is possible, then it would be lawful for the employer to exclude the employee from entering the workplace. However, as already discussed above, this is not a basis for automatic termination as the employee may have additional rights under other laws. Further, managers and supervisors should again be trained to recognize these sorts of requests, and employers should be flexible in finding solutions that allow such employees to continue to perform their jobs while keeping the workplace safe.
If you are an employer who needs assistance with implementing a mandatory COVID-19 vaccination program for your employees, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice and reading or interacting with this website does not create an attorney-client relationship.
