CAN EMPLOYERS REQUIRE MANDATORY COVID-19 VACCINES? IT DEPENDS…
With the widespread distribution of these vaccines impending, an end to the coronavirus pandemic is imaginable, if not in sight. Many employer and employees are asking various questions concerning the vaccine, chief of which is, can I require all employees to be vaccinated in order to work at my company?
Most questions concerning the interplay of the law and the vaccine’s administration, however, are unanswered. On December 16, the Equal Opportunity Employment Commission (EEOC) supplemented its already extensive guidance on COVID-19 in the context of equal employment opportunity laws (EEOs), with a section pertaining specifically to coronavirus vaccines. While this guidance is not legally binding, it is useful for predicting the course of the law as we progress into a new phase of the pandemic. Below we cover some of the questions raised and answered by the EEOC.
Can employers require employees to be vaccinated?
It depends. If an employee objects to taking the vaccine because of a disability, religious belief, pregnancy, or other protected feature, an employer will need to look at the instance on an individualized basis and potentially consider making an accommodation, if one is available. Employees usually are required to make a requested accommodation and not wait for the employer to suggest one, so if employees are apprehensive about taking the vaccine for a protected reason, they should consult with an employment lawyer about how to make a request. For example, the workforce has grown accustomed to working from home. It may be that the employee needs to request to continue to work from home for a time, which may be a reasonable request for an accommodation depending on the circumstances.
Even if an employer ultimately can require an employee to be vaccinated, as the EEOC suggests is the case in some circumstances, employers have to be careful how they do it. The EEOC covers a number of questions related to the same, which can be found here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov). We cover some of these questions and related issues below.
Does an employer’s administration of a COVID-19 vaccine to an employee qualify as a “medical examination” under the Americans with Disabilities Act (“ADA”)?
The ADA sets out rules about when an employer may subject employees to medical examinations and inquire about their disabilities. Once an employee is officially employed, his/her employer may only require medical examinations or make disability-related inquiries where doing so is “job-related and consistent with business necessity.”
But first, one must determine whether the administration of a vaccine is a medical examination or disability-related inquiry at all. With regard to both, the EEOC says “No.” Administering a vaccine does not “seek information about an individual’s physical or mental impairments or health,” so it is not a medical examination. The guidance does note, however, that proper administration of the vaccine requires health care providers to ask certain screening questions to determine whether there is a medical reason a person should not receive the vaccination, leading us to the next question.
When an employer requires an employee to receive a vaccination from the employer, are screening questions designed to determine the safety of the vaccine for the employee subject to ADA standards for disability-related inquiries?
In most cases, yes, says the EEOC. The touchstone of whether an inquiry is disability-related is whether it is likely to elicit information about a disability, and pre-vaccination screening questions carry a high likelihood of revealing disability-related information.
As mentioned above, employers may only make disability-related inquires when doing so is “job related and consistent with business necessity.” In this context, “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.” In other words, when an employer requires employees to receive the vaccination from that employer, it may ask the employee disability-related questions if it reasonably believes that the employee, if unvaccinated, will pose a direct threat to themselves or others.
Elsewhere in the supplemental guidance, the EEOC fleshes out what it means by “direct threat,” by listing four relevant factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
Importantly, the EEOC lists two situations where an employer may ask disability-related screening questions without satisfying the “job related and consistent with business necessity” requirement:
First, the ADA states that if an employer offers vaccination to employees on a voluntary basis, the employee’s decision to answer pre-screening questions must be voluntary as well. If the employer decides not to administer the vaccine due to an employee’s refusal to answer the questions, the employer may only refuse to administer the vaccine. It may not retaliate against or treat the employee differently for declining to answer them.
The second exception comes into play in situations where an employer requires employees to receive vaccinations from third-party providers like pharmacies or the employee’s own physician, and the third-party does not have a contract with the employer to provide the vaccine. In such cases, the “job related and consistent with business necessity” restrictions would not apply to pre-screening questions posed by the third-party provider.
Is requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
As mentioned above, the touchstone for determining whether an inquiry is disability-related is whether the inquiry is likely to reveal disability-related information.
Accordingly, the EEOC says, “No,” asking an employee to show proof of vaccination is not a disability-related inquiry. Simply asking for such proof is not likely to reveal disability-related information. Other, related inquires, such as asking an employee why they were not vaccinated, may, however, implicate the ADA and the “job related and consistent with business necessity” standard.
Where an employer requires that its employees get vaccinated, what happens if an employee is unable to receive the vaccine due to a disability?
The ADA states that an employer may impose “a requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” But if this requirement tends to screen out, or screens out those with disabilities, the employer must show that those affected 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.”
Framed in terms of the vaccination issue, this means that if an employer imposes a safety requirement, such as a vaccination mandate, and that requirement tends to screen out those with disabilities, the employer must show: (1) the unvaccinated person poses a direct threat due to a significant risk of substantial harm; (2) the risk cannot be eliminated or reduced by reasonable accommodation.
For the first question, the “direct threat” one, the EEOC points to the same four factors listed above: the duration of the potential harm, the severity of it, its likelihood, and its imminence. In this instance, an affirmative finding must include a determination that the unvaccinated individual would expose others at the worksite to the virus.
The second question, the “reasonable accommodation” one, asks whether reducing the direct threat to an acceptable level would impose an “undue hardship” on the employer. If it cannot reduce the threat of infection of others in the workplace to an acceptable level, only then may it exclude the employee from the workplace. Still, this does not mean that the employer may automatically terminate the worker. First, the employer must still ensure that they are in compliance with all other applicable laws. Further, the employer should consider whether it can reasonably accommodate the worker while still excluding him/her from the workplace by allowing him/her to work remotely.
Where an employer requires that its employees get vaccinated, what happens if an employee is unable to receive the vaccine due to a sincerely held religious belief?
Title VII, like the ADA, requires that employers provide reasonable accommodations to employees for their sincerely held religious beliefs or practices. That means that employers mandating vaccines must consider whether not requiring an employee to receive a vaccine due to their religious beliefs will impose an undue burden on the employer. Under Title VII, the “undue hardship” standard still applies, and is defined as “more than a de minimis cost or burden.”
Again, if the employer cannot reasonably accommodate such a worker, it may exclude the worker from the workplace. Before it may legally terminate the worker, though, it still must consider its compliance with other laws, and whether allowing the worker to work remotely is a reasonable accommodation.
Does an employer’s inquiry into whether an employee has been vaccinated implicate Title II of the Genetic Information Nondiscrimination Act (GINA)?
The EEOC reasons that since the mere act of injecting a vaccine does not involve disclosure of genetic information, Title II of GINA does not apply. This inquiry tracks the similar question above of whether the mere requirement of a vaccination or its mandatory administration by an employer is a disability related inquiry under the ADA. And, as with that question, while mere receipt of the vaccine does not require revelation of genetic information, pre-screening questions might. Here, the question is simple. As the EEOC puts it, “[i]f the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.
There are still many gaps and unanswered questions as we wade into this new phase of the coronavirus pandemic, but the EEOC’s guidance provides a starting point in addressing many pressing questions in the employment law context. As an employee, the main takeaway is that you may lawfully be required to get a COVID-19 vaccine by your employer, but it really depends on the circumstances of your job and why you do not want to take it – in some cases, we believe that employers will not be lawfully permitted to require the vaccine, but time will tell. However, when an employer chooses to make vaccination mandatory, it must comply with the requirements of a number of laws, including the ADA, Title VII, GINA, and applicable state law.
[THIS BLOG SHOULD NOT BE RELIED UPON FOR LEGAL ADVICE – YOU SHOULD CONSULT WITH AN EMPLOYMENT LAWYER ABOUT YOUR INDIVIDUAL SITUATION]