Employers have much to consider now that the Equal Employment Opportunity Commission has confirmed they may require a Covid-19 vaccination as a condition of returning to the workplace.
The EEOC outlined some of the legal implications of mandating vaccines in the context of the Americans with Disabilities Act and Title VII. The guidance highlights legal pitfalls that exist for employers who mandate the vaccine, including how to address employees who refuse vaccination due to disability, pregnancy, or sincerely held religious beliefs.
Following are some key points for employers to ponder before implementing a mandatory Covid-19 vaccination program.
Consider Prescreening Issues
While the EEOC clarified that the vaccine is not a medical examination or inquiry under the ADA, vaccine pre-screening questions must be job-related and a business necessity because they may elicit information that is “disability related.”
Practically, this means that employers must show that by not answering the questions—and therefore not receiving a vaccination—the employee poses a direct threat to herself/himself or others. This is a case-by-case analysis that should consider the actual threat level in the workplace.
Notably, employers who make the vaccine voluntary, or who use a third party that is not contracted with the employer, do not have to justify the use of the prescreening questionnaire
As such, employers who wish to mandate the vaccine should consider using a public provider such as a pharmacy or third-party health-care provider and request that employees provide proof of vaccination from that third-party provider.To avoid any potential liability, that request should clarify at the outset that the only information the employer is seeking is that the employee received the vaccine, and no other medical or genetic information.
Communicate Vaccination Policy Clearly
Employers who mandate the vaccine should also clearly communicate to employees their vaccination policy, how to request an exemption, the deadline to request an exemption and to receive the vaccine, and any penalty for failure to vaccinate.
Employers should have a clear plan to address employees who refuse the vaccine due to disability, pregnancy, or based on religious beliefs.
The EEOC makes it clear that employers must engage with such employees to identify reasonable accommodations that may eliminate or reduce the risk posed by an unvaccinated employee and that the knee-jerk reaction should not be to jump to excluding the employee from the workplace.
Accommodations may include the continued use of masks and social distancing, offering the employee a different position, or allowing remote work.
Employers will need to realistically assess the risk level in the workplace including factors such as the amount interaction required between employees, customers, or the public, and whether employees work outdoors or are able to isolate in private offices. This accommodation assessment is fact-specific and will vary between industries, companies, and even individual roles.
Consider Policy Implications
These obligations have significant implications. For example, employers who readily provided remote work opportunities during the pandemic with little business impact but are anxious to have employees back in the workplace may be hard-pressed to argue that remote work is not available as a reasonable accommodation.
Likewise, employers who deemed it sufficiently safe for employees to enter the workplace by imposing social distancing, mask, and enhanced cleaning requirements may be subject to challenge if they assert that the workplace is no longer sufficiently safe under those same conditions.
Another point to consider is the difficulty that exemptions for medical reasons may pose. Because of the infancy of this vaccine, it may be difficult to determine whether someone has a true medical contraindication. Working through medical exemption requests at this stage likely will present challenges.
The EEOC also cautioned that supervisors and managers should know “how to recognize accommodation requests.” Employers should confirm whether an employee requires or is seeking an accommodation before terminating any employee who refuses to be vaccinated. Employers should be familiar with any state and local laws that impose even more stringent requirements on employers.
Because the vaccine has been reported to cause somewhat moderate reactions (e.g., fever, chills, fatigue, body aches), employers who require a vaccine should consider staggering implementation, as employees may need employers to grant time off to recover.
Employers are also concerned about potential liability due to vaccine-related injuries or deaths if they mandate the vaccine. Side effects have included multiple cases of vaccine recipients experiencing life-threatening allergic reactions.
Some employers are waiting until more information about the vaccine, its side effects, and efficacy have developed before deciding to mandate it.
While the Moderna and Pfizer-BioNTech vaccines have received emergency use authorization by the Food and Drug Administration, it is estimated that healthy workers under 65 years of age who are not frontline essential workers could wait until the summer of 2021 to secure a vaccine. This gives some employers additional time to determine how to proceed.
Employers are also grappling with the reality that the vaccine, once seen as the silver bullet in eradicating Covid-19, will not instantly return the workplace to the pre-pandemic normal even if employees are vaccinated. It remains unknown if immunized individuals are no longer contagious or cannot spread the virus.
Also, according to the CDC, experts do not know what percentage of the population must be vaccinated, or otherwise immune, to achieve herd immunity in the U.S. Thus, in meeting its general requirement under the Occupational Safety and Health Administration to maintain “a workplace free from serious recognized hazards,” employers, even if requiring vaccination, will need to maintain its mask-wearing and social distancing protocols for the near future.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Nancy Inesta is a BakerHostetler partner in the firm’s Los Angeles office. She regularly advises and represents clients in connection with employment and traditional labor law issues and is experienced in trial practice in state and federal courts, as well as litigation before administrative bodies.
Amy Traub is chair of BakerHostetler’s national Labor and Employment Group and is in the firm’s New York office. She is an experienced employment litigator and adviser, focusing her practice on the management side of employment law matters for clients in all industries, with a focus on the health care, hospitality, and retail industries.