Now that the first COVID-19 vaccines are being delivered and administered and a second vaccine is close behind, employers are asking whether they can require that employees be vaccinated. In September, Dan Ballintine and I recorded a podcast on mandatory vaccines. On December 16, 2020, the EEOC issued guidance on the ADA and vaccines. Although this guidance does not change the information that Dan and I provided in our podcast, I thought it would be helpful to highlight a few points the EEOC makes. The EEOC addressed vaccinations in the publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws.” Below you will find several highlights of the EEOC’s guidance.
Question: Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination permissible under the ADA?
Answer: The general rule is that employers are not allowed to ask about an employee’s medical condition unless it is job-related and consistent with business necessity. In its December 16 guidance, the EEOC said that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry and therefore it is a permissible question.
Question: If an employer requires vaccination when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a medical condition?
Answer: Employers have the right to have qualification standards that include a requirement that an individual does not pose a direct threat to the health or safety of individuals in the workplace. If a COVID-19 vaccination is required, the employer must show that an unvaccinated employee 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. Therefore, employers dealing with an employee who refuses to take the COVID vaccine should conduct an individualized assessment of four factors in determining whether a direct threat exists:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
A conclusion that the employee poses a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the work site. The EEOC guidance is clear that if an employer determines that an individual who cannot be vaccinated due to a medical condition poses a direct threat at the work site, the employer cannot exclude the employee from the workplace without undergoing the interactive process to determine if there is a reasonable accommodation that would eliminate or reduce this risk. If the employee poses a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from entering the workplace. This does not necessarily mean the employer may automatically terminate the employee. Employers will need to determine if there are any other EEO laws that may be implicated.
Question: How should an employer respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
Answer: Once an employer is on notice that an employee’s sincerely held belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice or observance unless it would pose an undue hardship. “Undue hardship” with respect to a sincerely held religious practice or belief is far different from undue hardship under the ADA. Under Title VII, undue hardship means that the accommodation creates more than a minimal cost or burden on the employer. If an employee requests a religious accommodation and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information. Assuming the employee has a sincerely held religious practice or belief, and there is no reasonable accommodation available, the employee can be excluded from the workplace.
Once there is sufficient COVID-19 vaccine available, employers can require that employees provide evidence of COVID-19 vaccination before they can enter the workplace. The specific evidence an employer can require to demonstrate that the employee has been vaccinated is unclear at this time. If an employee says that he or she cannot be vaccinated because of a sincerely held religious belief or practice or because of a disability, the employer will have to engage in the interactive process and decide if there are any reasonable accommodations that can be made to allow that employee to work. Before terminating an employee for failing to be vaccinated, an employer should contact an attorney to ensure that there are no other laws that may be implicated.