As new variants of the COVID-19 virus are appearing and vaccines have become more readily available, employers are challenged with creating safe and feasible return-to-work strategies for their workforces. This is leading many employers to as us whether they can encourage or require their employees to get COVID-19 vaccinations.
Employers Are Allowed to Mandate COVID-19 Vaccinations
In general, guidance from the Equal Employment Opportunity Commission (EEOC) allows employers to require that their employees be vaccinated before returning in-person to their place of work. A company’s policy that requires vaccinations is subject to several exclusions, including:
Exemptions for Disability
An employer cannot mandate vaccination for any employee with a disability that would make it inadvisable for them to receive a COVID vaccination. Such an employee must be accommodated if at all possible. Disabilities may include past experiences of allergic responses to vaccinations and being pregnant or engaging in nursing.
However, the EEOC also opined that an employer may deny accommodation to an employee with an allowable disability where it is not possible to reduce a “direct threat” presented by that unvaccinated individual. A direct threat is defined as follows:
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.
Based on the above, an employer has an obligation to conduct an individualized assessment to evaluate whether a direct threat really exists by taking the following into account:
- How long the risk is likely to last.
- The likelihood that plausible harm will actually occur.
- The nature and severity of any potential harm.
- How soon the potential harm may happen.
If it is determined that a direct danger from an unvaccinated individual exists, an employer may be in the right to exclude them from the workplace. However, the employer may also be obligated to provide an alternative working arrangement, such as remote working.
Moreover, as the Centers for Disease Control and Prevention (CDC) continues to advise the adoption of certain protective measures – masking, social distancing, regular health checkups – it may be possible for an employer to maintain unvaccinated individuals within the primary workplace.
- The assessment of what constitutes a direct threat is likely to change as mandates for masking and social distancing requirements are eased.
An employee holding genuine and sincere religious convictions that conflict with a mandated vaccination policy may be entitled to an exemption. The employer is obligated to furnish a feasible accommodation except if doing so would mean an “undue hardship” for the employer.
- An “undue hardship” is defined as placing more than a minimum burden or cost on an employer.
“Religions” encompass beliefs, practices, and observances that an employer may not be familiar with. Because of this, EEOC guidance specifies that an employer should, in general, presume that requesting an accommodation on religious grounds is based on a sincere religious belief. However, an employer with objective reasons for questioning the sincerity or quality of a “religious” belief is justified in requesting additional information.
- Note that merely subscribing to an anti-vax position is not sufficient to claim a religious exemption.
A Mandate for Vaccination Generates Other Employer Commitments
The Americans with Disabilities Act (ADA) restrains an employer from requesting medical reports from an employee or mandating medical examinations. However, according to the EEOC, a COVID-19 vaccination is not to be considered to be a medical examination.
Some questions for screening prior to vaccination may disclose information concerning a disability. To avoid this issue, the best strategy for an employer is to have a third party give the vaccine or ask the employee to show evidence of vaccination.
- Asking for proof that an employee has been vaccinated is not considered to be a disability-related inquiry.
However, EEOC guidelines also specify that an employer using pre-screening to ascertain the vaccination status of an employee may be determined to be engaging in a disability-related inquiry. This issue can be avoided by a requirement that employees obtain vaccinations from their own medical professionals or encouraging rather than requiring vaccinations.
If an employer is mandating vaccination, employees must be paid for time spent getting vaccinated. When planning to establish a mandatory vaccination policy, unionized employers need to be mindful of their collective bargaining negotiations.
Encouraging But Not Requiring Vaccination
An encouragement policy frees an employer from the obligation to perform disability and religious accommodation investigations. However, if employees are incentivized to become vaccinated (e.g., by offering gift cards, extra paid time off, or bonuses), accommodations will possibly be needed for any employees not qualifying for the incentive due to their disability or religious adherence status that keeps them from getting vaccinated.
An employer has the right to request that an employee demonstrate evidence of vaccination. Moreover, the EEOC has indicated that this request is not considered to be a disability-related inquiry. This is because an employer needs this information to prepare a plan to resume normal working practices, which might include:
- Resuming in-person work.
- Resumption of in-person meetings.
- Requirements for business travel.
- Planning for quarantine if workplace exposure occurs.
However when an employer decides to move forward with the vaccination issue, their proposed strategy and ongoing expectations should be clearly communicated to their employees.
This issue is far from straightforward, and protocols seem like they are changing every day. It is important for employers to stay up-to-date on new guidance, from the EEOC and the CDC, as well as what is happening in their industries.