On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its first wave of guidance regarding the COVID-19 vaccine. We anticipated that this guidance was coming soon, and published some preliminary instruction based on what information was available at the time, but now we have more information and it is time for an update. Here is what we know:
As a general rule, employers may require that their employees take the COVID-19 vaccine, but, there are two major exceptions to this rule based on disability and religion.
On the disability side of things, the employer is permitted to protect its employees from any “direct threat” in the workplace, even if that “direct threat” is another employee. If an employee refuses to get vaccinated because of the employee’s disability, then the employer will need to determine whether that refusal can be accommodated. If not, the EEOC has instructed employers to determine whether that employee would pose a “direct threat” in the workplace. To make this determination, the EEOC has provided four factors for the employer to consider:
- 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, a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the workplace. 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. 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 if possible.
If, on the other hand, the employee requests an accommodation based on a sincerely held religious belief, this request must be accommodated unless it would cause “more than a de minimis cost or burden on the employer.” This Undue Hardship language is less stringent than an Undue Hardship under the Americans with Disabilities Act (ADA), and it should be noted that a personal anti-vaccination belief will generally not establish a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy unless this belief occupies a place in the employee’s life that is similar to a more traditional faith—a high bar to meet.
If the employer administers the vaccine or contracts with a third-party to administer the vaccine, then any pre-vaccination screening questions will be subject to the ADA-related standards for medical inquiries. If the vaccination policy is voluntary (or administered through the employee’s treating physician or health care provider), then these ADA-related standards for medical inquiries will not apply. Furthermore, if the employer chooses to administer the vaccine through a voluntary program, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
Generally speaking, employers can request documentation to verify disability and religious accommodation requests. When an employer receives an accommodation request, it needs to determine whether that employee is a qualified individual with a sincerely held religious belief or qualifying disability. Once it is determined that the employee is a qualified individual, the employer needs to determine whether it can provide a reasonable accommodation for that employee. This can be things like teleworking, continuing to enforce mask policies, or a temporary restructuring of the employee’s job duties. If the employer cannot accommodate the employee, then the employer needs to determine whether that employee would pose a “direct threat” to the workplace. If the employee would pose a direct threat (again, another high bar to meet), then the employee may be excluded from the workplace, and potentially even terminated given the right circumstances.
We recommend that if an employer wishes to implement a mandatory vaccination policy, then it should have its employees go to their health care provider rather than providing the service in house. The employer can then request proof of vaccination without running afoul of the ADA or Title VII.
There will likely be nuances to any particular situation, so it is best to consult with your CSH Law attorney before drafting your mandatory or voluntary vaccination policy.