|Vanessa L. Smith
Vantage Legal Solutions P.C.
Leavitt Group Benefits Compliance
Last week, we watched and cheered imagery of the first people receiving the Pfizer vaccine in the U.S. With its approval and the promise of the Moderna and other vaccines seemingly inevitable, the possibility of a return to “normalcy”—work, school, and social events—has once again become the national conversation.
For employers, a vaccine means thinking ahead about if, when, and how to return some (or more) of the workforce to the workplace while ensuring the health and safety of all. Specifically, the question looming for employers is—can employees be legally required to receive the COVID-19 vaccine? Thankfully, on December 16th, 2020, the EEOC updated its previously issued guidance on COVID-19 to address what you should know regarding vaccinations in the workplace.
As with many employment law matters, the answer is… it depends. The EEOC “Guidance” sets forth the general premise that, yes, in compliance with its obligation to maintain a safe workplace, an employer can require that employees receive the COVID-19 vaccine or be excluded from the workplace. However, the Guidance identified possible exceptions to this general premise that are recognized by the EEOC. These exceptions are numerous and complex, and include medical and religious exceptions, as well as practical considerations.
Given these exceptions and practical considerations, we recommend that employers not mandate a vaccine, but strongly encourage employees to take the vaccine. That said, if you decide to mandate that employees receive the vaccine in order to return to the workplace, there are several legal and practical considerations to keep in mind.
Employees with certain medical conditions are eligible for a reasonable accommodation that could exempt them from any workplace vaccine mandate. Employers must continue to follow all ADA guidelines when receiving and deciding on such requests, including ensuring all medical records are properly maintained. The Guidance specifically recommends that employers should be prepared to follow their standard “interactive process” to determine whether a reasonable accommodation is required.
The Guidance also makes clear that if an employee is unable to receive a COVID-19 vaccination because of a disability, the employer may still require that the employee not pose a direct threat to the health or safety of individuals in the workplace. Therefore, if the employer determines “there is a direct threat that cannot be reduced to an acceptable level”, the employer can exclude the employee from physically entering the workplace—but this does not mean the employer may automatically terminate the worker.
The Guidance provides that the vaccination itself is not a medical examination, nor is requiring proof of a vaccination considered a disability-related inquiry. However, pre-screening questions could reveal information about a disability. Therefore, employers will need to ensure that all such questions are “job-related and consistent with business necessity.” It is not a disability-related inquiry to ask or require proof of a COVID-19 vaccination.
Religious exemptions to a vaccine mandate will also be permitted under Title VII of the Civil Rights Act of 1964. The Guidance recommends employers have an approach for considering options for an employee refusing vaccination for religious reasons and what does or does not constitute a potential “undue hardship” to the company. Employers should also remember that the “undue hardship” standard for the ADA is different and considerably harder to meet.
There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.
First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
Finally, there are practical considerations that impact employers. The most obvious are the logistics of obtaining access to a COVID-19 vaccine. The CDC has outlined a priority schedule of who should receive them first. Most medical professionals agree that it will be well into spring or summer before the vaccine is readily available to all Americans.
Pfizer has indicated that certain groups should not take its vaccine, including pregnant or breastfeeding women, autoimmune compromised individuals, and those with prior allergic reactions to vaccines. Employers will need to have a plan for addressing how to handle these employees outside of the ADA requirements.
Employees could also have an adverse reaction to the COVID-19 vaccine, creating employee backlash or even yielding workers’ compensation claims.
Finally, once the vaccine is widely available, we know that some employees will feel relieved. Others will be skeptical, and some may outright refuse to receive the vaccine. According to research from Pew, the number of adult Americans who will get the vaccine has dropped by 12% since May. Employers will have to address this fear, discomfort, skepticism, and defiance with clear, concise, and compassionate communication.
Union and Labor
In addition to EEOC compliance, employers will need to ensure that their decisions regarding mandated vaccines comply with the National Labor Relations Act. Employees who raise participation in a vaccine mandate may be viewed as raising workplace safety concerns that constitute protected concerted activity under the NLRA, and employers will have to ensure that such concerns are handled appropriately.
Privacy and Genetic Information
The Guidance talks extensively about the Genetic Information Nondiscrimination Act (GINA), noting that employers should also be aware that pre-screening questions could reveal information protected by GINA. The Guidance recommends that the employer ask the employee to not “provide genetic information as part of the proof” of vaccination, and in the event that it is provided that the employer omit such information to maintain compliance with Title II of GINA.
While the Guidance does not directly address this question, employers should not disclose which employees are or are not vaccinated to other employees. Such information should remain in separate and confidential medical records as the ADA requires employers to treat any medical information. In limited circumstances, employers can disclose medical records with “supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.”
Keep Doing What You Are Doing
Regardless of your company’s decision in this regard, it is important to keep doing what you’ve been doing to maintain a safe working environment. All prior precautionary measures remain critical to ensuring both safety and a level of comfort with a return to work. These measures include preparing the workplace for appropriate social distancing, providing appropriate PPE and enforcing its use, continuing medical screening for COVID-19 related symptoms, requiring testing where appropriate, and the other measures detailed in prior Leavitt webinars on this topic.
EEOC Guidance, including taped webinar and FAQs discussing pandemic preparedness and disabilities.