Can Your Workplace Require COVID-19 Vaccinations for Employees?

Learn about the 2 exemptions that exempt workers from the COVID-19 vaccine requirement

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Learn about the 2 exemptions that exempt workers from vaccines

UPDATE: On Dec 16, the EEOC issued new guidelines for vaccination requirements and proof of vaccinations for employers and employees. Here is the new guidance:

Source: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

“For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.

According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  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, 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.  See Question K.5. below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)29 C.F.R. 1630.14(d).  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

ADA and Title VII Issues Regarding Mandatory Vaccinations

Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page.

If an employer requires vaccinations 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 disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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.”  29 C.F.R. 1630.2(r).  Employers 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; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to 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 this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

If an employer requires vaccinations 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 sincerely held religious practice or belief? (12/16/20)

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 the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, 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.

What happens 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 sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Original article 12/11/2020

S0 – Can businesses require vaccinations? 

With the promise of several COVID-19 vaccines soon to be distributed, business and workers are hopeful for a return to normalcy. When the vaccine is generally available, some employers are considering whether to make vaccination a requirement for new or continued employment. There are some factors to consider when widespread availability is ready.

Plans to roll out the vaccine are advancing quickly. It’s expected that persons in long-term care facilities and frontline medical personnel will be the first recipients. Over 40 million doses (enough for 20 million Americans, as the vaccine requires 2 shots) are expected to be distributed in December of 2020. The Centers for Disease Control and other health and government authorities are finalizing plans to prioritize those at highest risk, then tailor vaccination and distribution for the rest of Americans.

Health and Human Services Secretary Alex Azar reported once the vaccines are approved and distributed it will be up to state governors to determine which segments of the population would be first in line. It will likely take months to vaccinate targeted populations, with voluntary vaccinations occurring as well.

Many business owners wonder if they can make vaccinations a condition of employment. The short answer is yes — with a “but.” Generally, employers can set health and safety requirements for their workplace, and the vaccine checks both boxes. There may be exceptions, however. Employees with a religious or medical concern may be exempt.

The United States Equal Employment Opportunity Commission allows businesses to require vaccines (like flu vaccines) as a condition of employment with 2 exceptions. The first allows workers with a legitimate medical reason to opt out, such as an allergy to the vaccine or its ingredients. The Americans with Disabilities Act allows this exemption currently. If, as the vaccine is distributed, other health concerns arise, there may be additional protections under the ADA. Pregnant women may also be exempt from vaccination under the ADA.

While the ADA exempts some employees from vaccinations, these are only allowed if there is no alternate way to accommodate employees (like allowing them to work remotely). Additionally, the accommodation must not present an undue hardship on the employer. Any employee refusals due to a medical accommodation must be considered on a case-by-case basis. Blanket policies may be considered discriminatory.

The 2nd exemption under EEOC guidelines is for religious beliefs that don’t allow vaccination. Under Title VII of the Civil Rights Act, these employees would also be exempt. In the U.S. District Court for the Southern District of Ohio a judge found veganism constituted a religious exemption to mandatory flu vaccinations due to the presence of animal byproducts in the vaccine. Again, business owners will need to work with employees who present a religious objection to the vaccine and work to accommodate their needs.

Generally, employers can set health and safety requirements for their workplace, and the vaccine checks both boxes. There may be exceptions, however. Employees with a religious or medical concern may be exempt.

Should businesses require COVID-19 vaccinations?

Even if you can, you may wonder if you should require staffers to receive a vaccination as a condition of employment. That may depend on the nature of the work and your workforce.

For the workers 

If staff members are predominantly young and healthy, they may be among the last Americans vaccinated based on government rollouts. Their chances of contracting the virus and having a significant medical issue may be low, and they may be a low priority to be vaccinated. This age group isn’t immune, however, nor does it stop them from spreading COVID-19 to more vulnerable populations. While they may believe they are at lower risk personally, consider the risk they pose to spread COVID when determining whether or not to require vaccinations.

For some employees, working with those who choose not to receive a vaccination may be problematic, as well. Again, healthy populations may feel they don’t need the vaccine, but you’ll want to remind them that — unless they work 100% remotely — the vaccine is for the benefit of others, as well as themselves.

For the workplace

Another consideration will be interaction with the general public. In a retail or hospitality environment, for example, hundreds of customers may interact with staffers on a daily basis. While employees may feel they’re at low risk to contract the virus in their personal life, the workplace may mean higher exposure. Unless your entire staff works remotely,  the vaccine may be necessary to assure the safest working environment possible.

Reassuring the public your employees are vaccinated could be critical to the success of your business. As much as other remediation measures like masks, shields and social distancing, you may find customers demand an environment that leverages the best possible safety protocols — including vaccination for staff members. You’ll want to consider the impact on the business and customers when determining whether or not to mandate vaccines.

Getting employee participation 

For companies whose staff members aren’t mandated to be vaccinated, business owners will want to discuss the need for vaccines with employees. Their health, the health of your customers and the ability for your business to return to normal are all factors you’ll want to discuss with staff. For those with a legitimate religious or medical exemption, reassure them you’ll work to accommodate their needs as much as is practical.

It may be beneficial to encourage, rather than require, staffers get the vaccine. You’ll want to discuss the medical necessity for their own protection, and that of their families. You’ll need to highlight how it may be beneficial from a public relations perspective — demonstrating to the community your company and staffers take their health seriously and are doing everything possible to protect the workplace, workers, and customers. You may find widespread participation among your staff eliminates the need to make vaccines a requirement.

If you decide vaccinations are necessary, provide staff members a reasonable timeline to get one. You may require frontline staffers have a shorter window to comply, perhaps a week or two. But don’t exclude anyone who doesn’t provide an ADA or religious exemption. You’ll want to assure all workers are treated equally, and required to comply, no matter their rank in the company.

You’ll want to assure all workers are treated equally, and required to comply, no matter their rank in the company.

If your business employs union workers, you’ll want to discuss vaccinations with union leadership before mandating them. Since vaccinations could be considered part of the bargaining agreement and are supported by law, it’s unlikely they would disagree. Preemptive discussions might be a best practice to set the stage for worker cooperation.

Getting employees vaccinated

You’ll want to set a time frame to comply, within reason and within the parameters of availability of the vaccine in your area. For those who are on the fence, consider offering incentives — like gift cards or a few hours off with pay — to encourage participation and give employees a reason to get their vaccine quickly. Have employees verify they’ve gotten their vaccines (each employee will need 2 doses) and keep records in their separate medical personnel files.

If you’ve determined vaccines are necessary, you still may find some staff refuse. Unless they’ve provided a verifiable medical or religious exemption, you would be within your rights to terminate their employment.

If you’ve determined vaccines are necessary, you still may find some staff refuse. Unless they’ve provided a verifiable medical or religious exemption, you would be within your rights to terminate their employment.

With a vaccine on the horizon, business owners are optimistic they can return to pre-pandemic routines and profitability. Getting employees on board with vaccination may be a critical factor in returning business to normal. Whether it’s voluntary or through incentives, getting employees vaccinated may be good for them and your company.

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