With FDA approval of at least two COVID-19 vaccines for emergency use, and more to follow, employers are faced with many questions on how to keep their workforce safe while balancing employee concerns about the vaccine.
In order to help employers with this dilemma, the Equal Employment Opportunity Commission (EEOC) recently released new guidance for employers considering vaccination programs.
The EEOC guidance can be found here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Part K).
For your convenience, we've summarized the five key concerns below:
1. Can I require employees to be vaccinated?
Yes, but not without some risk, including legal challenges based on disability or religious belief, mandatory duty to bargain with employees represented by a union, and possible liability for adverse outcomes for individual employees.
Whether an employer should require vaccinations as a condition of returning to or remaining in the workplace depends on a myriad of factors specific to the individual business, such as the nature and industry of the business (or the duties of the specific employee) and the availability of other precautionary measures. Mandating a vaccine may also create issues with employee morale. After evaluating the risks and costs of mandating the vaccine, an employer may wish to encourage and incentivize vaccinations rather than require vaccinations.
2. Can I administer, or hire a third party to administer, COVID-19 vaccines to employees or can I require employees to provide proof of vaccination from another source?
Not unlike the common practice with seasonal influenza immunizations, employers may administer or hire a third party to administer COVID-19 vaccinations. However, employers should be cautious when asking employees pre-screening questions about their medical status or history, so as not to elicit prohibited information about an employee's disability. Worksite vaccination may be a convenience for both employees and employers.
Employers should also consider allowing employees to provide proof of vaccination by the employee's own healthcare provider or pharmacist.
3. What if an employee says he or she is unable to be vaccinated due to a medical condition?
Once an employee requests an exemption from the vaccine for their medical condition or disability, the employer should engage in a flexible, interactive process to obtain any supporting documentation for the employee's claimed disability and to identify potential accommodations for the specific employee position. Unless the employer can show an "undue burden" caused by the exemption from vaccination, the employer has an obligation to provide a reasonable accommodation to employees with an ADA-covered disability or medical condition. The EEOC advises that the number of employees who have received the vaccination and exposure to others who may not be vaccinated weigh into the undue burden analysis. Additionally, administrative controls used to mitigate COVID-19 spread during the pandemic may be considered in determining whether an employee's accommodation request is reasonable. For example, if an employee was able to successfully work remotely previously, remote work may be viewed as a reasonable accommodation.
4. What if an employee says he or she is unwilling to be vaccinated due to religious belief?
Normally, employers are required to provide reasonable accommodations for employees' sincerely-held religious beliefs, practice, or observance under Title VII, unless it would cause undue hardship. Courts have found accommodations pose an undue hardship where an accommodation diminishes efficiency, impairs workplace safety, or infringes upon other employees' job rights or benefits.
Title VII does not protect social, political, or economic philosophies or personal preferences. An employee objection based purely on concerns related to safety or doubt in science may not qualify for an exemption. However, because "religious beliefs" is defined broadly to include moral or ethical beliefs about right or wrong that generally concern ultimate ideas about life, purpose, or death, to the extent resistance is tied to such ideas, a court could find the employee is entitled to an exemption. The EEOC recommends employers give employees the benefit of the doubt unless they have an objective basis for questioning the nature or sincerity of the belief.
5. Can I exclude unvaccinated employees from the workplace?
Maybe. When an employee has an ADA-qualifying disability or sincerely-held religious belief, the employer can exclude the employee from the workplace if the employer determines that the presence of unvaccinated employees poses a direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation. Determining "direct threat" requires individualized assessment of “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” The EEOC gives employers direction in making this assessment: "a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite."
Even if an employer can exclude an unvaccinated employee due to a direct threat, the employer may not automatically terminate the employee. The employer must assess whether reasonable accommodations may permit continued employment outside the workplace. In addition, an employer must determine whether other federal, state, or local laws protect the employee's position.
We Can Help
Determining whether to implement a vaccination program is complicated and will depend on your individual business. Please contact Maslon's Labor & Employment Group if you need help navigating how best to manage workplace safety in the COVID-19 pandemic.