By: Jessica Jackler
In September 2019, associate Jessica Jackler published an article in CLM Magazine about vaccines in the workplace and whether employers can make them mandatory. Now more than ever, “Managing an Outbreak,” is extremely topical with the COVID-19 vaccine approval and impending distribution phases.
The EEOC has recently updated its guidance on this subject and provides for certain exceptions employers must consider to implement a mandatory COVID-19 vaccination program.
Because there continue to be many uncertainties about projected timelines for the vaccine to reach all working Americans and its efficacy, the EEOC may update its guidance over time and therefore the information provided herein may change. In the interim, employers who plan to require employees be vaccinated, should be aware of the following issues.
The EEOC’s updated guidance clarifies that neither the administration of a vaccination nor the requirement that an employee show proof of vaccination are a “medical examination” or “disability-related inquiry,” and thus do not implicate the ADA. However, if an employer asks certain follow-up questions such as why he or she did not get vaccinated, it may elicit disability-related information that would trigger the ADA. In that event, the relevant ADA standard requires that the inquiries be “job-related and consistent with business necessity,” and all such records and communications should be treated as confidential medical records.
Additionally, the guidance suggests that employers may generally require employees to be vaccinated and may exclude employees from the workplace if they do not get vaccinated. However, before excluding employees from the workplace, “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.’”
The EEOC advises that 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.” If after making an individualized assessment about whether an unvaccinated worker poses a direct threat, the employer still cannot then exclude that employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”
Exemptions and Accommodations
If an employee objects to getting vaccinated because of a disability-related reason or because of a sincerely-held religious belief, an employer may be required to accommodate the employee and provide an exemption to the mandatory vaccination program. For employees with disabilities, the ADA requires employers to provide reasonable accommodation if the employee’s disability prevents the employee from being vaccinated, unless doing so would pose an undue hardship which is defined as “significant difficulty or expense.” Employers must consider potential accommodations in light of the nature of its workforce and the employee’s position.
If an employee objects to the vaccine based on religious reasons, Title VII requires employers to accommodate the employee unless doing would pose an undue hardship. The undue hardship standard under the Title VII analysis only requires an employer to show that providing the accommodation imposes more than a de minimis cost or burden on the employer.
Practice Tip: Although the EEOC guidance suggests that under certain circumstances employers may exclude unvaccinated employees from the workplace, there must be an individualized assessment before taking such actions. Employers that are considering excluding or terminating unvaccinated workers are advised to consult with counsel.