COVID-19 cases continue to increase, federal mandated leave is voluntary (for the time being), businesses are operating under a “new normal” and vaccines are being rolled out, but what do we do as a business? Employers nationwide (and worldwide I would imagine) are asking their teams, HR professionals and in-house counsel, “what do we do about the vaccine, do we require it?” So, let us take a dive into the new world of COVID vaccination, what we can require, what we should consider, and what is next.
Equal Employment Opportunity Commission (EEOC) on Vaccines
The EEOC recently issued long anticipated guidance for employers navigating the legal world surrounding the recently approved COVID-19 vaccines.
Can I require the vaccine?
Yes, at least federally. The EEOC guidance says that employers can require employees to get vaccinated, even during the Federal Drug Administration’s (FDA) Emergency Use Authorization (EUA) period, at least under federal law. This caveat is added because it is also important to reference your state and local laws. Several states are purposing legislation that would prohibit or limit the ability of employers to mandate vaccines.
What does the Guidance say?
The EEOC guidance clarifies that the vaccination itself is not a medical examination under the Americans with Disabilities Act (ADA) because the administration of the vaccine does not seek specific medical information related to an employee’s impairments or health status.
But employer be ware…
Employer Required Vaccine
There are several ways an employer can require their employees to be vaccinated:
- Employers can require that employees be vaccinated off-site by a third parties, e.g., doctors, pharmacies, etc.
- Employers can bring in such third parties to provide vaccinations onsite; or
- Employers can have one of their own appropriately licensed employees administer the vaccine.
If the employer chooses to use a third party (whether on or offsite) the third party will ask the employees specific questions and require them to sign a written consent. In both scenarios, the third party collects the additional information, and the employer is not privy to the health information elicited from their employees.
If the employer has one of their own employees administer the vaccine, the same questionnaire and consent forms are required, and these questions may implicate the ADA’s stringent protections regarding an employer’s health related inquiries.
In any use of screening questions, the employer must be able to show that the questions are “job-related and consistent with business necessity.” An employer must have a reasonable belief, based on the objective evidence, that employees who do not answer the questions (and therefore are not vaccinated) will pose a direct threat to their own safety or the health and safety of others.
There are two ways in which employers and vendors can ask screening questions without risking entanglement in the “job related and consistent with business necessity” requirement:
- If employers offer the vaccine to employees on a voluntary basis (whether done directly or through a vendor) then the questionnaire must also be completed on a voluntary basis.
- If an employee declines to answer the questions, the employer or vendor may decline to administer the vaccine, but the employer cannot retaliate against the employee because of this.
- If an employee receives a vaccination from a third party that is not contracted with the employer, then the ADA’s restrictions on pre-vaccination questions would not apply.
If we do not administer the vaccine, can we still require proof?
Yes, but… employers should be careful if asking why employees did not receive the vaccine, as these may elicit information about medical conditions and open the employer up to the ADA’s various requirements for disability related inquiries.
An employee is refusing the vaccine due to a claimed disability or sincerely held religious belief…
If this occurs, employers should go through the same processes and procedures that would apply to any employee requesting an accommodation.
For a disability-related reason, employers should begin the ADA’s interactive process, and assess whether an unvaccinated employee would pose a threat to themselves or others in the workplace. The EEOC reminds employers that this analysis typically includes four factors:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will in fact occur; and
- The imminence of the potential harm.
For a declination due to a sincerely held religious belief, the EEOC states that employers should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” and that requesting proof of the belief should ordinarily by reserved for situation in which the employer has “an objective basis for questioning with ethe religious nature of the sincerity of the particular belief, practice, or observance.” Employers are obligated to provide a reasonable accommodation for a religious belief, practice, or observance unless doing so would cause an undue hardship, defined by the EEOC as “having more than a de minimus cost or burden on the employer.”
We required the vaccine, the employee refused it and cannot return to work, can I terminate employment?
No. Before making any separation decisions, employers should continue to explore whether a reasonable accommodation like continued remote work or continued use of Personal Protective Equipment [PPE] as alternatives. Employers should not automatically conclude that remote work is an :undue hardship” because things may be returning to “normal” and that most employees are able to safely return to work or can or are willing to be vaccinated. The positions will require an evaluation before the decision is made and if it can no longer function in a remote capacity.
Other items to consider…
- Although the FDA has approved the use of the vaccine, it is important to note that it does not have a full approval under the FDA and is currently approved under an Emergency Use Authorization (EUA), which is a mechanism to facilitate the availability and use of medical countermeasures, including vaccines, during public health emergencies. There have been numerous reported cases of adverse reactions to the vaccines. Although there are currently no case studies regarding this, employers should carefully consider requiring a vaccination that is under EUA rather than a full approval and any future implications this may have on their employees.
- When will the vaccine be available for your employees? The rollout of vaccines has seen a slow start and though the new administration has an aggressive plan on vaccinations it is important to consider implementing a policy that may not have immediacy. Begin to consider what your stance will be and consider all options prior to policy creation.
- Company morale- you know the culture of your company and it is important to consider prior to deciding.
Like all things COVID-19, this is not a one-size fits all and there is no one right way to address vaccines. Consider your options, talk with your leadership, and get guidance from your HR professionals and legal counsel.
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