Although the long-awaited COVID-19 vaccine has finally arrived, nursing homes and assisted living facilities are facing the new challenge of employees who are reluctant to take it. In Florida and in many parts of the country, only about 20% of long-term care staff members have received the vaccine, prompting many senior living operators to ask whether COVID-19 vaccinations can be a condition of employment. The Equal Employment Opportunity Commission (EEOC) recently issued new guidance that states employers are permitted to mandate vaccinations, with certain exceptions.
According to the EEOC’s new recommendations, under Title VII and the Americans with Disabilities Act (ADA), employers that require vaccinations must make reasonable accommodations when an employee with a deeply held religious belief or an underlying disability elects not to receive the vaccine. Reasonable accommodations may allow for excluding the employee from the workplace.
As written by the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under EEO laws or other federal, state and local authorities.”
Under ADA, employers must engage in an individualized, interactive process with the employee to determine if the employee poses a direct threat to the workplace and the health and safety of others because they are not vaccinated. When an employee objects to the vaccination on religious grounds, employers should similarly explore accommodating the employee’s request provided that doing so poses no “undue hardship.” According to the EEOC and many courts, the accommodation must not require more than a “de minimis” cost to the employer.
The EEOC also explained in its guidance that requiring vaccination will not be deemed a medical examination. However, employers electing to administer or provide vaccinations at the worksite must take steps to avoid asking questions or obtaining information that could turn the vaccination process into a medical exam and potentially violate the ADA if the requested information reveals (or could reveal) a disability. To avoid such potential claims, “best practices” suggests that employers should require proof of vaccinations rather than administer the vaccination themselves.
With some senior living operators beginning to institute mandatory COVID-19 vaccinations and others weighing their options, a study by the Society for Human Resource Management (SHRM) revealed that a majority (61%) of U.S. organizations across industries said they plan to encourage, but not require, employees to take the vaccine. Employers are also considering incentive programs to further encourage vaccines, but even these types of programs must be implemented carefully to ensure compliance with the law.