Although mandatory vaccinations are controversial and have received much national attention in recent weeks, employer-mandated vaccinations are not new. Employers have implemented mandatory vaccination policies for years, most often in healthcare settings where employees often interact with high-risk and vulnerable populations. The general rule is that mandatory vaccination policies are permissible in the midst of a pandemic so long as employers consider certain exemptions, such as religious and medical accommodations, as required under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), respectively.
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.
Requiring employees to take the COVID-19 vaccine is not prohibited under the ADA, but the ADA does prohibit employers from making disability-related inquiries that are not “job-related and consistent with business necessity.” Because pre-screening vaccination questions are likely to elicit information about an employee’s disability, employers should make sure that they meet this standard if they intend to administer the vaccine directly or by contracting with a third party to have the vaccine administered.
The EEOC outlined two exceptions to the pre-screening rule. First, it would not apply if the employer required the vaccine, but the employee received it from a non-employer related third party, like the employee’s own health care provider or a pharmacy. It would also not apply if the employer offered the vaccine on a voluntary basis, because then answering the pre-screening questions would also be voluntary. In this second situation, the employer would be prohibited from retaliating against, intimidating or threatening the employee for refusing to answer any pre-screening questions.
Finally, the EEOC’s guidance clearly states that requiring an employee to provide proof of a COVID-19 vaccination is not a disability-related inquiry under the ADA. However, employers should avoid asking follow-up questions and should warn employees not to provide other medical information when providing the proof to avoid eliciting disability-related information. Asking an employee why he or she did not provide proof of a vaccination could trigger the ADA, and must only be done if the inquiry is “job-related and consistent with business necessity” (i.e., the unvaccinated employee would pose a direct threat to the health of others by exposing them to the virus).
If an employer does administer the vaccines or contracts with a third party to do so, it must ensure that it keeps any information obtained through the pre-screening process (or otherwise) confidential. 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:
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. The courts have defined “undue hardship” under Title VII as anything having more than a minimum cost or burden on the employer, which is a substantially lower burden than under the ADA. 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.
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:
Employer-sponsored vaccine programs, where an employer contracts a third-party to vaccinate its employees, are fraught with legal risk and procedural hurdles when they are mandatory rather than voluntary. For example, standard screening questions prior to vaccine administration touch on topics such as the employee’s own health conditions and the health conditions of family members, including (in some cases) genetic conditions. According to the EEOC, such inquiries, when posed by an employer’s contractor, are disability-related inquiries, and, when implicating genetic information, are likely prohibited by the Genetic Nondiscrimination Act (“GINA”), unless the disclosure is completely voluntary.
However, requiring proof of vaccination from the employee’s own healthcare provider does not constitute a disability-related inquiry, and, provided that the proof does not contain genetic information, does not implicate GINA. For these reasons, employers who wish to require vaccinations would generally be better served by permitting employees to provide proof of vaccination from an independent provider, even if they also engage a contractor to provide vaccines directly to employees on a voluntary basis. Employers who choose to mandate vaccination could also consider giving employees the option of receiving a vaccine through an employer-sponsored program or from their own provider, potentially eliminating challenges associated with mandatory employer-sponsored programs.
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.
Title II of the Genetic Information Nondiscrimination Act (GINA)
The EEOC’s guidance also states that requiring a COVID-19 vaccination does not implicate GINA’s prohibitions on using, acquiring or disclosing genetic information. However, an employer may violate GINA to the extent that it (or a contractor acting on its behalf) administers the vaccine and asks pre-screening questions that seek genetic information about the employee or his or her family members.
Because it is unclear what questions screening checklists will contain, employers may want to request proof of vaccination rather than administering the vaccine themselves, and instruct employees not to provide any genetic information as part of the proof.
Emergency Use Authorization Obligations for Vaccine Providers
While not included in the EEOC’s guidance, an employer that decides to administer the vaccine itself should be aware of its obligations as the vaccine provider under section 360bbb-3(e)(1)(A) of the Food, Drug, and Cosmetic Act. That section provides the conditions under which the secretary of health and human services may authorize medical products for emergency use, including that recipients are informed of the benefits and risks of the vaccine (including unknown risks); the option to accept or refuse the vaccine; the health consequences, if any, of refusing the vaccine; and the alternatives to the product that are available and of their benefits and risks (21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(II)-(III)). To address this, the FDA’s guidance recommends that recipients receive a fact sheet on the vaccine.
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.
The employer should implement a written policy that explains the legitimate safety and health rationale behind the decision to require the vaccine, details the requirement, and establishes a mechanism for employees and applicants for employment to raise objections and request accommodations based on disability or sincerely held religious belief. Supervisors, managers and those involved in the recruiting and hiring process should be well informed regarding the policy and to whom at the company they should refer employee and applicant objections and requests for accommodation related to the vaccine requirement. In terms of developing a mandatory vaccine policy, the policies and procedures that the employer (if a health care employer) may have in place related to a mandatory flu vaccine may be a helpful starting point. However, it is highly advisable for employers to have their legal counsel review the COVID-19 vaccine policies and procedures before distributing to employees.
Employers should also train their human resources personnel, as well as managers and supervisors responsible for communicating with employees, regarding:
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.
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