As the first trucks of COVID-19 vaccines start their way around the United States, many employers are eager to return to work. The first reaction many employers have to news of FDA approvals for COVID-19 vaccines is whether they can adopt policies requiring workers to take the vaccine and come back to the workplace – the next questions they will have is how they will do this, and should they?
A mandatory vaccine policy as a condition of returning to work raises a number of questions and concerns for employers to consider:
- What if an employee objects to the vaccine because of a medical condition making them more susceptible to allergic reactions?
- What if the employee has objections based on their religious beliefs?
- What if employees are just scared of the vaccine in general because it was developed so quickly?
- What if instead, we think some employees just like staying home to work?
- How do employers handle the timing of the vaccine, which may require two doses over a period of weeks before being effective?
- What if a group of employees oppose this requirement together in a collective fashion?
- What if employees take to social media to voice their objections?
- What if an employee has a bad reaction? Will the employer have any legal protections?
- How will all of this change under the Biden administration?
There may be no “perfect cure” to the mandatory vaccine policy predicament, but on December 16, 2020, the EEOC issued new guidance for employers. The guidance leaves many unanswered questions, but is a step in the right direction. The guidance is summarized below, and can be viewed in its entirety here.
PRE-SCREENING QUESTIONS & THE ADA
- The guidance states that the COVID-19 vaccine is not considered a “medical examination” for the purposes of the ADA.
- However, pre-screening questions before administering the vaccine may elicit information about a disability. Therefore, employers must show that the pre-screening questions 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.”
- There are two circumstances where disability-related screening questions can be asked without having to satisfy the “job-related and consistent with business necessity” standard:
- If an employer offers a vaccination on a voluntary basis, then the pre-screening disability-related questions must also be voluntary. If an employee chooses not to answer the questions, an employer may decline to administer the vaccine, but may not retaliate against, intimidate or threaten the employee for choosing not to answer.
- If an employee receives a vaccination as required by the employer through a third party that is not contracted with the employer (e., pharmacy or healthcare provider), the ADA’s “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-screening questions for the vaccination.
- Requesting proof that an employee has received a COVID-19 vaccination is not a disability-related inquiry. However, asking any other questions (like why did an individual not receive a vaccine), may elicit disability-related information and would be subject to the ADA’s standard of “job-related and consistent with business necessity.”
EMERGENCY USE AUTHORIZATIONS (EUA) FROM THE FDA
- The Pfizer COVID-19 vaccine is available to the public through an Emergency Use Authorization (EUA) issued by the FDA. Employers need to know this is different than a full approval under FDA vaccine licensure, and that it is unclear when full approval may be issued by the FDA for either of the vaccines.
- Employers can learn more about the EUA here.
EMPLOYEES WITH DISABILITIES AND/OR RELIGIOUS BELIEFS THAT PREVENT THEM FROM GETTING THE VACCINE
- If an employee says they have a disability and are unable to comply with the employer’s vaccine requirement, employers must evaluate if refusing to take the vaccine poses a direct threat to the health and safety of individuals in the workplace. Employers can conduct an individualized assessment of four factors to determine if a direct threat exists:
- the duration of the risk,
- the nature and severity of the potential harm,
- the likelihood the potential harm will occur, and
- the imminence of the potential harm.
- If there is a direct threat that cannot be reduced to an acceptable level, an employer can exclude the employee from physically entering the workplace. However, this does not mean they can automatically terminate the employee – employers must determine if any other rights apply under the EEO or federal, state or local laws.
- Managers and supervisors should know how to recognize an accommodation request and know who to whom they should refer such a request.
- If an employee indicates they are unable to receive a COVID-19 vaccine because of a religious practice or belief, the employer must provide a reasonable accommodation under Title VII of the Civil Rights Act, unless it poses an undue hardship. If the employer has an objective basis to question the nature or sincerity of the claim, the employer would be justified in requesting additional information from the employee.
- If an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or religious practice or belief, it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean the employer can automatically terminate the employee. Employers must determine if any other rights apply under the EEO or federal, state or local laws.
TITLE II OF THE GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) AND VACCINATIONS
- Title II of GINA is not implicated when an employer administers a COVID-19 vaccine or requires employees to provide proof of being vaccinated, as it does not involve the use or disclosure of genetic information.
- However, pre-screening questions that ask about genetic information (such as family medical history) may violate GINA. To avoid this, employers may want to request proof of being vaccinated, rather than administering the vaccine themselves.
While the rollout of the first COVID-19 vaccines were done in record time, mandatory vaccine policies are nothing new. Many healthcare companies, for example, have for a long time required employees to take the flu vaccine. Some states have passed laws requiring healthcare workers to do so. The difference here is that the COVID-19 vaccine is still only authorized for emergency use, meaning it is still considered experimental.
We are continuing to monitor the impact the rollout of the COVID-19 vaccines will have of US employers, and will update our Workplace Blog with new developments.