The COVID-19 vaccine is here and if you are a business owner or manager, you should begin to think about how you will approach the vaccine in your workplace.
In mid-December, the Equal Employment Opportunity Commission (EEOC) updated its guidance to include what you may and may not do as an employer in terms of requiring or encouraging employees to get the COVID-19 vaccine. The date is important because, since the beginning of this pandemic, government agencies have routinely updated their guidance on COVID-19 topics, and we expect the vaccine to be no different.
You will see below that the EEOC says that you are allowed to require the vaccine, but as with all things pandemic, it remains to be seen how this will play out. We may see litigation, potential new state and local laws, and emerging guidance, so it might be prudent for employers to adopt a voluntary/encouraged/recommended vaccine policy, for now. Some tactics you can take to promote higher levels of participation are:
- Educate your employees about the vaccine.
- Be vocal about leadership getting the vaccine. Lead by example.
- Make it easy for them to get it, including paid time off for anyone who experiences side effects.
- Cover any associated costs.
The information below will provide you with a basic understanding of the EEOC’s current position, which focuses on medical confidentiality and how to accommodate employees who say ‘thanks, but no thanks’ to the vaccine.
As a reminder, the EEOC enforces workplace anti-discrimination laws, including:
- The Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries)
- Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy)
- The Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older)
- The Genetic Information Nondiscrimination Act
Like all federal agencies during this pandemic, the EEOC states that “Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
And, it’s worth checking with your friendly local attorney about any state or local laws that may offer additional protection for your workforce.
The most important thing to know is that you ARE allowed to require employees to get a COVID-19 vaccine. You are responsible for providing a safe workplace and protecting your staff and customers from a deadly virus falls into that category. (And for me begs the question: What happens if an employee accuses an employer of NOT protecting them because they DIDN’T require the vaccine?)
Understanding Considerations Under the American Disabilities Act
Getting a vaccination is not considered to be a medical examination, because the act of getting the vaccine does not seek information about someone’s physical or mental health. However, pre-vaccination screening questions are likely to run into ADA territory. If the vaccine is administered by you or a third party hired by you, you must show that disability-related screening inquiries are “job-related and consistent with business necessity.” These questions would be about allergic reactions, a recent positive Covid test, and so forth.
To meet this standard, you 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 her or himself or others.
There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement:
- First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any 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 “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.
Can you Require Proof of Vaccination?
If you are not offering vaccines on-site but still encouraging or requiring employees to get a vaccine, can you ask an employee to provide proof? Yes and no. The EEOC says, “There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof to avoid implicating the ADA.”
Handling Disability or Religion-Related Vaccine Objections
Now, let’s look specifically at employees who object to being vaccinated due to disability or a sincerely held religious belief. 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.” But if this standard screens out an employee with a disability, you have to be able to show that an unvaccinated employee would pose a direct threat to the health and safety of your other employees. Yardsticks here include the duration of the risk, nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the harm.
Yet, even if you determine that all of these things are true, you are not allowed to exclude that employee from the work site unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk. Relocating the employee’s workstation, reducing or eliminating contact with others while at work, and staggering shifts would all be reasonable accommodations. If you are unable to reduce the threat to an acceptable level, you may exclude the employee from the workplace, but termination should be the very last resort. If it’s an option, working from home would be an easy fix here. If not, consult an attorney before taking any steps to furlough or terminate.
Engage the employee in an interactive process and work together to determine a solution. Train your management team on your internal policies, how to engage with employees who are unable to receive the vaccine due to disability, and the importance of non-discrimination and non-retaliation.
If an employee claims a sincerely held religious belief, practice, or observance prevents them from receiving the vaccination, you must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that, because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. For more information, check out SHRM’s Vaccine FAQ page.
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