While 2021 isn’t off to the start we all hoped it would, there is good news on the horizon. Health care workers and other high-risk individuals are now getting the Moderna or Pfizer COVID-19 vaccine. Most people will likely be able to receive the vaccine by the end of the second quarter 2021. While the federal and state governments work on supply and logistical issues, many employers are planning ahead. Should businesses adopt a vaccination policy to get employees back in the workplace sooner rather than later? Fortunately, the Equal Employment Opportunity Commission (EEOC) recently released guidance that answers some of these workplace vaccination questions.
Can employees be required to get the COVID-19 vaccine to return to the workplace?
Yes, with a few notable exceptions. The EEOC has not explicitly stated that employers could require employees to get the COVID-19 vaccine. But, they did indicate that such a policy could be lawful. The Americans with Disabilities Act (ADA) permits employers to exclude employees from the workplace who present a direct threat to employee health or safety in the workplace. The EEOC has determined that COVID-19 meets the “direct threat” definition. This means that an employer can require that employees be vaccinated to reduce the threat of spreading the COVID-19 virus to other workplace employees.
However, there are exceptions for employees who are unable or unwilling to get the COVID-19 vaccine. This can be due to a disability or closely held religious belief. The employer cannot exclude the employee from the workplace or take any other action unless there is no way to provide a reasonable accommodation to eliminate or reduce this risk without posing an undue hardship on the employer.
In situations like the above, remember that context matters. Health care, retail, and/or travel employees are more clearly at risk. Those who present a risk to others will have more justification to require a vaccine and consider an unvaccinated employee in the workplace to be a direct threat. However, businesses that are office-based or that can rely on a remote workforce might be able to provide reasonable accommodations. Doing so would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If reasonable accommodations cannot be made for unvaccinated employees to reduce or eliminate the direct threat, the employer can exclude unvaccinated employees from physically entering the workplace.
Employees may not get the COVID-19 vaccine due to sincerely held religious belief, practice, or observance. The employer must provide a reasonable accommodation unless it poses an undue hardship. It is important to note that employers do not have to accommodate secular or medical beliefs about vaccines.
Can employers require employees to provide proof that they receive the COVID-19 vaccine?
Yes. Generally, the ADA does not permit employers to make medical inquiries or require employee medical examinations unless the inquiries or exams are job-related and consistent with business necessity. The EEOC’s guidance explains that the vaccination itself is not a medical examination. Suppose a vaccine is administered to an employee by an employer for protection against contracting COVID-19. In that case, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination. However, employers should be aware that if they require the vaccine or contract with a vendor to provide the vaccine, the pre-vaccination medical screening questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.
The EEOC has stated that simply requesting proof of receipt of a COVID-19 vaccination does not elicit information about a disability and, therefore, is not a disability-related inquiry. However, other questions such as asking why the employee did not receive a vaccination could elicit information about a disability. Employers must show that such pre-screening questions are job-related and consistent with business necessity. If an employer requires its employees to provide proof of vaccination from a pharmacy or their own health care provider, it is recommended that the employer warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
The EEOC has also provided two circumstances where asking disability-related screening questions is okay without needing to satisfy the “job-related and consistent with business necessity” requirement:
- First, employers may sponsor a voluntary vaccination program where employees choose whether they want to receive the COVID-19 vaccine and whether to answer screening questions. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine. In doing so, the employer may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
- Second, employers may mandate vaccinations but must design its program so that employees choose where they will obtain the vaccine, then provide proof of the vaccination. In this case, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
Can employers incentivize voluntary vaccination as opposed to mandating it?
Yes. COVID-19 vaccines are a sensitive and polarizing issue for many employees. Many U.S. companies have already opted to encourage, rather than mandate, that their employees get the COVID-19 vaccine. For employers leaning toward voluntary programs, offering incentives to employees is a good way to increase participation. Examples of incentives include paid time off to take the vaccine and recover from any symptoms, 401(k) incentives, or cash stipends for each dose of vaccine received. When offering incentives, employers must be mindful not to discriminate against, identify, or vilify employees who are not eligible because of their disability or religion.
What steps should employers take to prepare for the availability of the COVID-19 vaccine?
Although the EEOC’s guidance provides employers with clarification on some aspects of a mandatory or voluntary vaccine policy, the analysis can be complex, and open questions remain. Employers should first consider whether a mandatory policy is necessary and consistent with their business needs. If so, employers should consider whether mandatory vaccines are appropriate for only their high-risk worksites or for those employees where remote work is not possible. Employers should also seek their employees’ input about their concerns with the COVID-19 vaccine to create confidence and ensure compliance with applicable laws.
Once employers decide to implement a vaccine policy, whether mandatory or voluntary, they should work with their HR departments to ensure they have a process for evaluating and accommodating disability and religious objections to the vaccinations. Give special attention to situations where accommodations may present an undue hardship on the employer, especially since many employers have already transitioned large segments of their workforce to remote work. Finally, employers should focus on steps they can take to encourage and incentivize employees to get vaccinated, such as:
- Developing vaccination education campaigns to dispel common myths about vaccines
- Providing cash or paid time off incentives to employees to get vaccinated
- Covering the entire cost of obtaining the vaccine for employees
- Providing employees with logistical support and information about getting vaccinated, such as how and where they can obtain the vaccine and what they should do after being vaccinated
Equinox will continue to monitor guidance on COVID-19 vaccines as they develop. In the meantime, employers should consider what approach to employee vaccination will work best for their business. Equinox attorneys remain committed to working with clients to navigate the legal landscape surrounding COVID-19 vaccines and implement ADA compliant vaccine policies. Contact us today.
Legal Disclaimer: This article contains general information. Do not view this article as legal advice. Talk with counsel familiar with your unique business needs before taking or refraining from any action.