With the recently approved vaccines for COVID-19, many employers are asking whether they can require their employees to get vaccinated as a condition of employment. Most believe the answer is generally yes, but with important qualifications. These qualifications usually relate to employment rights and protections, such as exceptions to vaccinations for medical reasons or religious beliefs. However, there are additional considerations regarding workplace safety and liability concerns that employers should weigh in deciding whether offering or mandating the COVID-19 vaccine is appropriate for their workforce.
In general, employers should ensure that they reasonably accommodate their employees’ medical and religious needs, as required under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). In particular, under the ADA, employers need to reasonably accommodate employees who have a “disability” as defined by law, unless such accommodation imposes an “undue hardship” under the circumstances. See [https://www.eeoc.gov/disability-discrimination#:~:text=Disability%20discrimination%20occurs%20when%20an,or%20she%20has%20a%20disability.]. In the context of a vaccine requirement, courts have varied in their conclusions as to whether conditions like anxiety or allergies related to vaccines may qualify as disabilities under the law.
Under Title VII, employers need to accommodate employees who hold a “sincerely held religious belief,” provided however that the accommodation does not impose an “undue hardship.” See [https://www.dol.gov/agencies/oasam/civil-rights-center/internal/policies/religious-discrimination-accommodation]. Most recognize that the “undue hardship” question under Title VII is less stringent than that under the ADA. Nonetheless, under both laws, many open questions remain.
The EEOC has previously sued an employer who required flu vaccinations and denied a group of individuals an exception to that requirement based on their religious beliefs. So it is clear that employers should be very mindful about how, when, and why they do or do not grant exceptions to vaccine requirements in the workplace.
The EEOC has previously clarified that it considers COVID-19 to satisfy the “direct threat” standard under the ADA—that is, an employee with COVID-19 can be a “significant risk of substantial harm” to other employees in the workplace. This recognition enables employers to conduct more detailed medical inquiries and impose greater workplace controls (e.g., screenings, testing, etc.) than they are normally allowed.
While this recognition gives employers additional leeway to control the workplace, it also raises other questions and issues, such as the employer’s compliance with its obligation to provide a workplace free of known hazards under the Occupational Safety and Health Act (“OSHA”). This obligation comes from what is known as the “General Duty” clause of OSHA. See [https://www.osha.gov/workers]. Employers should thus consider this obligation and potential liability related to it in crafting any workplace policies on vaccination for COVID-19.
New EEOC Guidance
On December 16, 2020, the EEOC issued formal guidance on the issue of mandating a COVID-19 vaccine in the workforce, in order to provide some amount of clarity on these various issues and questions. See [https://www.eeoc.gov/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws]. This new guidance answers several common questions about vaccines in the workplace.
Among other things, it clarifies that an employer who requires its employees to receive vaccinations must show that vaccine-related inquiries must be job-related and consistent with business necessity, based on objective evidence, and that a refusal of the employee to answer them (and thus get vaccinated) must be shown to pose a direct threat to the health or safety of her or himself or others. This is based on the EEOC’s recognition that the ADA allows employers “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.’” If such a standard “screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would poses 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.’”
To show such a “direct threat,” the EEOC states employers should conduct individualized assessments that consider four factors: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm. In short, “[i]f 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.”
With that said, the EEOC carefully noted: “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.” As always, the EEOC encourages the same message as before: “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).”
Regarding potential religious exemptions from vaccination requirements, the EEOC offered the following message: “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.”
At the end of the day, a healthy dose of common sense will help employers responsibly move forward in their decision-making as far as the establishment and enforcement of workplace policies on vaccines:
- Be consistent and careful in the enforcement of the policy, to the extent COVID-19 vaccination is required.
- If COVID-19 vaccination is required, make sure the requirement is job-related for each employee subject to the requirement and is otherwise consistent with business necessity (e.g., remote workers with no contact with other employees or customers would likely not fit within such a requirement);
- Recognize medical and religious exceptions to any COVID-19 vaccination requirement, properly train staff on how to identify and process any requests for accommodations in that regard, and carefully document any decision-making related thereto;
- Consider the possibility of encouraging, but not requiring, the vaccine and using other controls such as masks and social distancing requirements; and
- Notify employees in advance about any requirement or policy regarding COVID-19 vaccination (including any changes thereto) and carefully explain the same.
Some have anticipated or predicted that COVID-19 vaccines will be distributed to the general public and become widely available as early as late February or early March 2021. A lot may change between now and then. It is important for employers to stay abreast of updates and developments in this area and to review and change their policies and practices as appropriate. Stay tuned for further guidance.