In light of the recent approval by the Food and Drug Administration (FDA) of the new Pfizer-BioNTech and Moderna vaccines for COVID-19, questions regarding vaccination and the workplace are bound to arise. On December 16, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidelines regarding mandatory workplace vaccinations. The guidelines point out that the EEO laws do not interfere with or prevent recommendations made by the Center for Disease Control and Prevention (CDC) or other public health authorities. Rather, the guidelines provide compliance details regarding mandatory vaccine policies as they pertain to three primary pieces of legislation:
Americans with Disabilities Act (ADA): prevents employment discrimination based on disability and requires employers to make reasonable accommodations for employees with disabilities
Title VII of the Civil Rights Act: prevents employment discrimination based on race, color, religion, gender, pregnancy, or national origin
Genetic Information Nondiscrimination Act (GINA): prevents employment discrimination based on genetic information of an individual or an individual’s family members
The EEOC guidelines help address some of the most pressing issues pertaining to the central question:
Can an employer require its employees to get vaccinated against COVID-19?
The short answer is ‘yes’—with some caveats of course. Firstly, the rules for mandatory vaccination differ depending on whether the vaccine is administered by the employer/a third party contracted by the employer or administered by an unaffiliated third party (e.g., a pharmacy or healthcare provider).
In the former scenario, while the employer does have the right to require a vaccination, medical pre-screening questions preceding the vaccine administration could create the potential for violations under the ADA and/or GINA. As a general practice, the CDC recommends that those receiving the vaccine complete a pre-screening questionnaire prior to receiving the injection. An example of such a questionnaire on the CDC website consists of questions such as:
- Do you have cancer, leukemia, HIV/AIDS, or any other immune system problem?
- In the past 3 months, have you taken medications that affect your immune system?
- Have you had a seizure or a brain or other nervous system problem?
- During the past year, have you received a transfusion of blood or blood products?
Because of the nature of such questions, they could possibly elicit information about an individual’s disability or genetic information which could violate the stipulations under both Acts that limit an employer’s ability to make disability-related inquiries or request genetic information. Therefore, to be able to ask such questions, an employer must be able to prove that these inquiries are “job-related and consistent with business necessity.”
If an employer requires vaccinations but allows employees to choose their own third party to administer the vaccine (e.g., a local pharmacy), the issue with the pre-screening questions doesn’t apply. For this reason, employers implementing a mandatory vaccine policy are encouraged to allow employees to use their provider of choice to administer the vaccine in order to limit ADA and GINA liability risks.
However, many employers may wish to require proof from employees that they have indeed received the vaccination from a reputable third-party source. Asking for proof of vaccination in and of itself does not violate the ADA or GINA, but subsequent questions that might elicit disability-related information could. The EEOC guidelines advise employers to warn employees not to disclose any additional disability or genetic related information when providing proof of vaccination.
Considering that both the Pfizer-BioNTech and Moderna vaccines each require two separate injections, employers will want to verify that employees have gotten all necessary shots before returning to the workplace. Verification of an employee receiving a COVID-19 vaccine won’t be sufficient when two shots are specifically required for the vaccine to be effective.
If an employee refuses to show proof, the employer is within its right to ask the employee why they have refused. If the employee cites a previously undisclosed disability, the employer may then make the appropriate inquiries or request medical documentation to determine whether the employee has a legitimate “disability” as defined by the ADA.
What if an employee refuses the vaccine on legitimate religious or medical grounds?
If employees inform an employer that they are not able to receive a vaccination due to either a disability or a “sincerely held religious belief, practice, or observance,” the employer is once again faced with determining whether the vaccination as a qualification standard is “job-related and consistent with business necessity” for that individual.
To meet the “job-related and consistent with business necessity” standard, the EEOC guidelines state that an employer must prove that an unvaccinated employee would “pose a direct threat to the health or safety of her or himself or others.” When assessing the “threat” level of an unvaccinated individual, employers need to consider four factors:
- the duration of the risk
- the nature and severity of the potential harm
- the likelihood that the potential harm will occur
- the imminence of the potential harm
If it is determined that an unvaccinated employee would indeed pose a direct threat to the workplace, the employer must first make reasonable accommodations to lessen the threat, absent undue hardship on the employer. For example, installing plexiglass at an employee’s workstation would likely be reasonable, whereas having to build a new, isolated office could likely qualify as undue hardship.
If steps cannot be taken to reduce the threat level, the employer may exclude the individual from the physical workplace but does not have the automatic right to terminate the individual’s employment. In many cases, the individual may be entitled to further accommodations—such as remote work or eligibility to take leave—under EEO laws or other legislation.
What if an employee refuses the vaccine on grounds other than religious or medical?
In some cases, an employee may refuse to receive a vaccine on grounds that are neither disability nor religion related e.g., political reasons, distrust of the vaccine, or self-termed “anti-vaxxer” beliefs. In the recent CNBC/SurveyMonkey Workforce Survey, conducted among more than 9,000 U.S. workers at the end of November, 41% of workers indicated that they would not support workplace-mandated vaccinations. However, the EEOC guidelines recognize medical issues and legitimately held religious beliefs as the only two reasons for someone to refuse the vaccine. Although others may feel very strongly about the subject, they are not protected by any relevant law with respect to vaccine mandates.
Accordingly, while an employer would have a legal obligation to attempt a reasonable accommodation for those refusing vaccination on religious or medical grounds, the same would not be true for “anti-vaxxers.” If the only reason an employee can offer for refusing the vaccine as a condition for returning to the workplace is their strong (but non-religious) beliefs, an employer could not only refuse to allow that employee’s return, but could likely treat the employee’s position as a voluntary termination.
What if an employee experiences a side effect from a mandated vaccine that causes them to miss work?
While the FDA has deemed both vaccines safe and effective, as with most novel vaccines, recipients of the injections may experience side effects to differing degrees of severity. It is therefore conceivable that employees may experience adverse side effects from a workplace-mandated COVID-19 vaccination that would prevent them from working. In such a case, an employee may be entitled to compensation under state workers’ compensation laws and would likely have a strong argument that the injury/illness arose out of employment.
However, this risk must be measured against the potential liability an employer exposes themselves to by allowing employees to return to work unvaccinated. If the spread of COVID-19 to a client or vendor, for instance, can be traced back to an unvaccinated employee, the employer could also face liability claims.
If you have any further questions regarding COVID-19 vaccination policies in the workplace or the EOCC’s new guidelines, please contact Philip Mortensen.
