In a remarkable feat of scientific achievement, two COVID-19 vaccinations are now being distributed and administered in the U.S. less than a year after the virus first took hold. With the availability of a vaccine now a reality, employers have begun focusing on whether they can require employees to be vaccinated. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance about the interaction between federal discrimination laws and employee COVID-19 vaccinations that provides much-needed direction on the issue. The guidance essentially states that employers can require mandatory employee vaccinations, so long as they reasonably accommodate employees who object for legitimate disability or religious reasons. Employers that intend to require mandatory vaccinations must also decide how to go about having their employees vaccinated. This alert provides a summary of the EEOC’s guidance on employee COVID-19 vaccinations and the issues employers should consider in deciding how to have their employees vaccinated.
Disability Accommodation Issues
The Americans with Disabilities Act (ADA) allows an employer to have a qualification standard that an employee not pose a direct threat to the health or safety of individuals in the workplace, and the EEOC guidance recognizes the COVID-19 vaccination requirement as such a legitimate standard. However, the EEOC guidance states that if an employee objects to being vaccinated against COVID-19 because of a disability, the employer cannot exclude the employee from the workplace unless it can show that allowing the employee into the workplace unvaccinated 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.” 29 C.F.R. 1630.2(r). The EEOC guidance states that employers should conduct an individualized assessment of four factors in determining whether or not a direct threat exists, including:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
According to the guidance, a conclusion that a direct threat exists “would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
Even if an employer determines that an employee who cannot be vaccinated due to a disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is “no way” to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk, such as wearing a mask or maintaining social distance from coworkers, so that the unvaccinated employee does not pose a direct threat. In deciding whether an undue hardship exists, the EEOC guidance states that one factor employers should consider is the number of employees in the workplace already vaccinated and the amount of contact with individuals whose vaccination status could be unknown.
The EEOC guidance goes on to state that even if the employer may exclude the employee from physically entering the workplace because there is a direct threat that cannot be reduced to an acceptable level without an undue hardship, that does not mean the employer may automatically terminate the employee. In such a case, the employer would then have to determine if an alternative accommodation exists, such as allowing the employee to work remotely. This is the same step that employers take when physically excluding employees from a worksite due to COVID-19 symptoms or a current diagnosis.
Religious Accommodation Issues
Regarding religious objections, the EEOC guidance states that once an employer is on notice that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for that religious belief, practice or observance, unless it would pose an undue hardship under Title VII of the Civil Rights Act. The courts have defined “undue hardship” under Title VII as anything having more than a de minimis cost or burden on the employer, which is a substantially lower burden than under the ADA.
Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, the EEOC guidance notes that if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, it can request additional supporting information. If there is no reasonable accommodation that does not impose an undue hardship (as defined under Title VII) that would excuse an employee with a religious objection from being vaccinated, then it would be lawful for the employer to exclude the employee from the workplace. However, as under the ADA, the employer could not automatically terminate the worker and would first have to determine whether an alternative accommodation exists, such as working remotely.
Options for Vaccinating Employees
Three options exist for employers that want to require mandatory vaccinations:
- Administer the vaccine themselves;
- Contract with a third party to administer the vaccine on the employer’s behalf; or
- Require employees to obtain the vaccine from a third party that does not have a contract with the employer, and require employees to provide proof of vaccination.
The EEOC guidance states that pre-vaccination medical screening questions are likely to elicit information about a disability. This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. Thus, if the employer requires an employee to receive the vaccination, administered by the employer or its contractor, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” 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 her or himself or others. Pre-vaccination medical screening questions asked by an employer or an employer’s contractor that elicit genetic information about an employee or an employee’s family member, such as inquiring about family medical history, may also implicate the prohibition of obtaining genetic information about employees and their family members under the Genetic Information Nondiscrimination Act (GINA).
On the other hand, employers that require employees to be vaccinated by independent third parties with no contractual relationship with the employer can altogether avoid the issues that may arise under the ADA and GINA from pre-vaccination medical screening questions. The EEOC guidance states that requiring an employee to obtain and provide proof of vaccination from such a third party does not implicate any of the prohibitions under the ADA or GINA. Employees required to obtain a vaccination from an independent third party should nonetheless be instructed not to provide genetic information as part of their proof of vaccination so as not to inadvertently violate GINA.
Employers should also remember that all information concerning employee vaccinations, regardless of who administers the vaccine and how the information is obtained, must be maintained as confidential medical information under the ADA.
Considerations for Unionized Employers
Unionized employers considering mandatory COVID-19 vaccination for employees should remember that such a requirement would likely be considered a mandatory subject of bargaining under the National Labor Relations Act, thus requiring that they bargain with their unions about the requirement.
With the issuance of its guidance, the EEOC has effectively provided the authority that employers have been waiting for, allowing them to require employees to be vaccinated against COVID-19 once the vaccine is available to them in order to enter the workplace, subject to accommodation for disability and religious reasons. Employers should determine whether they will require employees to be vaccinated and, if so, whether they will administer the vaccine themselves, contract with a third party to do so, or require employees to obtain the vaccine from an independent third party and provide proof of vaccination. Unionized employers should also consider any bargaining obligation they may have concerning mandatory vaccinations.
Employers should also train their human resources personnel, as well as managers and supervisors responsible for communicating with employees, regarding:
- Compliance with the employer’s vaccination requirement;
- How to recognize a disability or religious accommodation request from an employee; and
- To whom the request should be referred for consideration.
When an accommodation request is received, employers should engage in a flexible, interactive process with the employee to identify possible workplace accommodation options that do not constitute an undue hardship. That process should include determining whether it is necessary to obtain supporting documentation about the employee’s request, as well as considering the possible options for accommodation given the nature of the workforce and the employee’s position.
For questions regarding mandatory employee vaccinations and the EEOC’s guidance, please contact any of the attorneys on our Labor & Employment Practice Team or the Phillips Lytle attorney with whom you have a relationship.