Published in the Portsmouth Herald (1/3/2021)
Employers that have been wondering whether they can or should require employees to receive a COVID-19 vaccine now have some answers to their questions. The federal Equal Employment Opportunity Commission (“EEOC”) recently provided important guidance to employers on these issues. The EEOC’s guidance, entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is a must-read for any employer considering mandating vaccination against COVID-19.
In its guidance, the EEOC explains that a vaccine is not considered a medical examination, and that asking employees whether they have been vaccinated is not a disability-related inquiry. However, when a vaccine is administered, certain screening questions are asked to determine whether the individual can safely receive the vaccine. The EEOC cautions that these pre-vaccination screening questions, when asked by an employer or a contractor on behalf of an employer, may be disability-related inquiries. This is because the screening questions are likely to elicit information about a disability. Likewise, asking employees questions about why they have not been vaccinated may be disability-related inquiries because the answers to such questions could also disclose disability-related information.
What this means for employers is that if they administer a COVID-19 vaccine to employees, or contract with a third-party to do so, the employer must be able to show that the pre-vaccination screening questions are “job-related and consistent with business necessity.” To make this showing, the employer would need to establish that it has a reasonable and objective belief that an employee who does not receive the vaccine will pose a “direct threat” to the health or safety of that employee or others. When determining whether an unvaccinated employee will pose a “direct threat,” employers are required to consider the duration of the risk posed by the unvaccinated employee, the nature and severity of the potential harm an unvaccinated employee could cause, the likelihood that the potential harm will occur, and the imminence of the potential harm. The EEOC has stated that a conclusion that an unvaccinated employee would pose a “direct threat” necessarily includes a determination that an unvaccinated person would expose others to COVID-19 at work.
There are two ways that employers can avoid the requirement of making a “direct threat” showing. They are: (1) by encouraging but not mandating that employees be vaccinated; or (2) by requiring that employees receive a vaccine administered by a third party with which the employer does not have a contract, such as the employee’s primary care physician or a pharmacy.
Employers that mandate vaccination may be able to exclude an unvaccinated employee from the workplace. However, employers can only do so if there is no way to provide the employee with a reasonable accommodation that would reduce or eliminate the risk, without undue hardship to the employer.
Under both the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, an employee with an underlying medical condition or a sincerely held religious belief that prevents the employee from receiving the vaccine, is entitled to an exemption from a vaccine mandate as a reasonable accommodation, barring an undue hardship to the employer. Therefore, if an employee requests an exemption from a vaccine mandate, the employer must engage in an interactive process to determine whether an exemption is a reasonable accommodation. If not, the employer must work with the employee to determine whether there are other reasonable accommodations that could be made. Measures such as providing additional PPE, adjusted schedules, telecommuting, job transfers, permitting the employee to use paid time off to search for a new job, assisting the employee with a job search, or imposing additional infection control measures such as wearing a mask at all times, are examples of measures that might be reasonable accommodations, depending on the circumstances.
Employers do not violate the Genetic Information Nondiscrimination Act’s (“GINA”) prohibitions on using, acquiring, or disclosing genetic information, by administering vaccinations or mandating proof of vaccination. However, the EEOC warns employers that administering vaccines or requiring proof of vaccination may violate GINA if an employee’s genetic information is disclosed in the process.
Finally, employers must remain mindful of their obligations to protect and maintain the confidentiality of any medical information they may obtain as part of a vaccination program.
Because the issues surrounding whether to mandate or simply encourage COVID-19 vaccinations are complex, employers should consult with experienced employment counsel when deciding whether and how to implement a COVID-19 vaccination program.
Laura Kahl is an attorney in McLane Middleton’s Woburn office and is admitted to practice in Massachusetts. She can be reached at (781) 904-2677 or [email protected].