Guidance from the Isaac Wiles Labor and Employment Group
With the distribution and continued FDA approvals of COVID-19 vaccines, and the workforce disruptions that COVID-19 has caused, many companies wish to know one thing–Can I mandate that my employees receive the vaccine once it becomes widely available? The short answer is yes, subject to certain limitations.
An employer may have a policy mandating that employees receive the COVID-19 vaccine, provided such policy contains an exemption process for reasons of religion (Title VII of the Civil Rights Act of 1964 (Title VII)) and disability (Americans with Disabilities Act (ADA)).
Prior to December 16, 2020, the recommended guidance from the Equal Employment Opportunity Commission (EEOC) was for employers to encourage, rather than require, employees to receive the vaccine. Effective December 16, 2020, the EEOC cleared any ambiguity and modified its guidance to allow employers to require such a vaccine. The ADA permits employers to maintain qualification standards that include a requirement that employees “not pose a direct threat to the health or safety of individuals in the workplace.” In order to determine if a direct threat exists because of a lack of vaccination, employers should consider the following: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood the potential harm will occur; and 4) the imminence of the potential harm. A determination that there is a direct threat would also include the probability that the individual would be exposed to COVID-19 at the worksite. Such determination is fact specific and may be different for employees serving in different roles.
As part of a COVID-19 vaccine policy, an employer may require employees to provide verification they have received the two doses required for the current, approved vaccine options. Such a request does not run afoul of the ADA or Title II of the Genetic Information Nondiscrimination Act (GINA) because it is not considered a disability related inquiry nor does it involve the use of genetic information to make an employment decision or other “genetic information” as defined by GINA. If proof of vaccination is required, it is important to caution employees not to provide any medical information or any responses to the pre-vaccination screening questions as part of the proof to avoid implicating the ADA or GINA. Employers should take note that the COVID-19 vaccine should be widely available before requiring it and should be flexible as to which manufacturer of the vaccine is required.
For employees with an underlying pre-existing health condition (including pregnancy), reasonable accommodations must be made for them under the ADA. The employer is entitled to documentation of the physical or mental impairment that prevents the employee from taking the vaccine. If an employee raises this issue in response to a mandatory vaccine policy, the employer should treat it as they would any other request for a reasonable accommodation under the ADA–by engaging in the interactive process to determine if the requested accommodation poses an undue hardship to the business, and documenting all steps taken. Reasonable accommodations could include allowing an employee additional personal protective equipment, social distancing, teleworking, or alternative leave. Please note that each situation is fact specific should be evaluated on a case by case basis. Importantly, the employer has the discretion to choose among effective accommodations—not the employee. If there are no reasonable accommodations available that would eliminate or minimize the risk so that the unvaccinated employee would no longer be a direct threat, then an employer may exclude the employee from the workplace.
Similarly, for employees who object to receiving a vaccine based on that employee’s sincerely held religious belief, practice, or observance, an employer should determine whether there is a reasonable accommodation available. For this exception to apply, the employee must have a sincerely held religious belief, practice, or observance that prevents this type of medical care. If the employer has an objective basis for questioning the religious nature or sincerity of the belief, practice, or observance, an employer would be permitted to request additional supporting information. As with objections for medical reasons, the employer does not need to grant an accommodation if it creates an undue hardship. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer, which is a lower standard than the ADA.
Moving forward, we recommend consulting with legal counsel to avoid any pitfalls when creating vaccination policies or handling reasonable accommodation requests under Title VII or the ADA.