Pfizer and Moderna are distributing their vaccines for COVID-19 for front line workers and high-risk individuals, creating feelings of increased optimism for 2021. However, perhaps due to the quick development of the vaccines, a significant percentage of the population continues to express doubt about getting inoculated.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its newest guidance and stated that, in general, employers can require employees to get a COVID-19 vaccine and may deny them entry into the workplace if they refuse. The guidance affirms that employers are entitled and required to ensure a workplace in which “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, there are at least three potential qualifications to this guidance that must be taken into account.
First, the Americans with Disabilities Act (ADA) limits an employer’s ability to require workers to get a medical examination. However, the EEOC clarifies that, “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”
The ADA also requires employers to reasonably accommodate employees covered disabilities. Thus, if an employee reports that he cannot take the vaccine due to a disability, then the employer must, at a minimum, begin to engage in the interactive process to determine if a reasonable accommodation can be made without posing an undue hardship on the employer. In other words, the employer must assess whether it can provide an accommodation that does “not pose a direct threat to the health or safety of individuals in the workplace….”
Second, Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate employees’ religious beliefs. If an employee reports that he cannot take the vaccine due to a sincerely held religious belief, then the employer must determine whether an accommodation can be made without posing an undue hardship on the employer. Note that although this accommodation issue is somewhat similar to that imposed under the ADA, the process for religious accommodations is typically less burdensome for the employer.
An employee making an accommodation request either for health or religious reasons could be eligible for unpaid leave or other similar entitlements under federal, state and local laws, according to the EEOC. The agency’s guidance acknowledges that employees on job-protected unpaid leave might rise to the level of undue hardship for employers. It states that if an employee’s job cannot be done remotely and there is no reasonable way to accommodate the person’s wish not to be vaccinated, then the employer can terminate the employment relationship.
Employers that are providing vaccines to employees or through a third-party should be cognizant that using pre-screening vaccination questions may elicit information concerning an employee’s disability status or family medical or genetic history and could implicate the ADA and/or the Genetic Information Nondiscrimination Act (GINA). Any employer making such personal inquiries must determine if doing so is “job-related and consistent with business necessity.” Sensitive medical information of that type must be kept apart from the personnel file and should be protected and accessible strictly on a need-to-know basis.
Thus, an employer may ask for proof of a vaccine without running afoul of the law but should be careful with any follow up questions. For example, if the employer is going to challenge an employee’s claim of religious accommodation, then the employer should have an “objective basis” to question the nature or sincerity of that claim. We expect that some employees will refuse to cooperate because they think they can cite to a right to privacy or some similar concern. Before terminating an employee for refusing to provide proof of vaccination or to answer whether he or she has been vaccinated, employers should consult with counsel.
Third, an employer with a bargaining unit likely has an obligation to bargain, upon request, over any vaccine requirement with its union(s). The nature and extent of any bargaining obligation is very fact dependent and will vary from bargaining unit to bargaining unit.
Mandating that all employees be vaccinated is not required by law and may not be desired or appropriate in many workplaces. According to a recent Wall Street Journal article, some of the country’s largest employers are planning a different approach to getting employees to get the vaccine for fear of backlash that might come with giving a strict directive. Some employers will use an appeal to wellness; offering encouragement, assistance, and financial incentives rather than a mandate to take the vaccine.
Although it may be a few months before the vaccines are widely available to the public, the EEOC’s guidance sheds light on some of the questions with which employers have been grappling. Every employer should at a minimum strongly consider ways in which it may take proactive steps to encourage employees to be vaccinated. That could include assisting employees in easily accessing vaccines once they become available, covering related costs to the extent there are any, and/or offering other appropriate incentives.
Now is the time for employers to think through and plan their vaccine-related strategy and related communications. For questions or for more information on this issue, please contact Peter Bennett (firstname.lastname@example.org) or Rick Finberg (email@example.com) of the Bennett Law Firm.