By Jeff Jones
Special to the UCBJ
Now that COVID-19 vaccinations are becoming available, employers are considering whether to require employees to be vaccinated against this virus. But is this legal?
While the general answer is “yes” in employment-at-will states, there are multiple legal issues involved in the process. Employers should consider various legal requirements, such as state or local laws which may impede employment-at-will status, collective bargaining agreements, and state and federal laws which require employers to provide accommodations to certain employees. Employers should also consider the employee morale issue associated with a vaccination mandate, given the prevalence of the anti-vaccine movement and the anticipated push-back from fearful employees.
Thus, the answer is not so simple. Fortunately, the EEOC issued amended guidance on Dec. 16, 2020 to assist employers in assessing their legal requirements and responsibilities in this process.
One of the biggest legal issues associated with the administration of a mandatory vaccination is the Americans with Disabilities Act as Amended (ADA). The ADA requires that employers keep confidential all employee medical information, no matter how obtained. This includes medical information obtained through a COVID-19 vaccination program.
The ADA also limits employers’ ability to require medical examinations of an employee. In its recent guidance, the EEOC clarified that the COVID-19 vaccination itself is not a medical examination for purposes of the ADA.
Pre-screening vaccination questions, however, may implicate the ADA’s limitations on disability-related inquiries, if they seek information which may disclose a disability. Any pre-screening questions submitted by the employer to the employee which elicit information about a disability must be job-related and consistent with business necessity. The EEOC guidance states that “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 employee or others.
The EEOC guidance describes two circumstances in which disability-related questions can be asked without need to satisfy the job-related and business necessity requirement. First, if the employer has offered the vaccination to employees on a voluntary basis, the employee’s decision to answer pre-screening questions must also be voluntary. If the employee chooses not to answer these questions, the employer may decline to administer the vaccination but may not retaliate against the employee for refusing to answer the questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA restrictions on disability-related inquiries would not apply to the pre-screening process.
The EEOC guidance also clarifies that requiring an employee to demonstrate proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, as it is not likely to elicit information about a disability. However, subsequent employer questions, such as asking an employee why they did not receive a vaccination, may elicit disability-related information and would be subject to the ADA requirement of being job-related and consistent with business necessity.
The EEOC guidance notes that the ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose 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.”
Employers are required to conduct an individualized assessment to determine whether a direct threat exists. According to the EEOC guidance, a direct threat conclusion “would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” That individual cannot be excluded, however, unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk presented by the unvaccinated employee. If the direct threat cannot be reduced to an acceptable level, then the employee can be excluded from physically entering the workplace. However, the employer should then consider other potential accommodations such as allowing the employee to work remotely, using the same steps that an employer takes when physically excluding employees due to a current COVID-19 diagnosis or symptoms.
Employers need to ensure that requests for accommodation are recognized during the vaccination program administration, and that the interactive process is engaged to identify potential reasonable accommodation options, if available. However, there may be situations where an accommodation is not reasonable or possible.
The same considerations should be applied if a pregnant employee states that she has been advised due to medical reasons related to her pregnancy to not receive the vaccine. The employer should consider the request, and conduct an individualized assessment to determine whether reasonable accommodations can be provided.
Accommodations may also be necessary if an employee declines vaccination due to a sincerely held religious belief, practice, or observance. However, if no reasonable accommodation is possible, then the employer may exclude the employee from the workplace. This does not mean the employer may automatically discharge the employee as considerations should be given to rights and responsibilities under other laws.
Another legal issue which may arise is the application of the Genetic Information Nondiscrimination Act (GINA), which prohibits an employer or a doctor working for the employer from asking questions about genetic information. Administering a vaccine or requiring employees to provide proof of vaccination does not implicate GINA because it does not involve the use of genetic information to make employment decisions or acquire or disclose genetic information. However, the pre-screening questions may violate GINA, if the employee is asked about genetic information, such as family medical history. GINA does not prohibit an employee’s own health care provider from asking about genetic information. So, employers who want to minimize the risk of potential GINA liability may want to request employees to provide proof of vaccination (from their own health care provider) instead of administering the vaccination themselves, ensuring that the proof of vaccination does not include genetic information.
Employers who mandate vaccination could also face potential liability that arises from requiring a vaccine where the vaccine then causes harm to the employee. This could result in workers’ compensation and/or tort liability claims asserted against the employer.
In summary, employers can generally require employees to get the COVID-19 vaccine and may bar them from the workplace if they refuse. However, employers should consult with legal counsel to fully consider all legal implications and considerations in drafting an appropriate policy and procedure. To reduce the potential legal risks, employers may consider requiring employees to provide proof of vaccination, whereby the employee obtains the vaccination from a health care provider of their choosing, instead of the employer administering the vaccination process itself or through a contracted pharmacy or health care provider. Employers should also consider the efficacy of simply encouraging their employees to get the vaccine rather than issuing a company-wide mandate, including incentives such as paid time off to receive the vaccine and recover from any side effects.