With the first inoculations of the COVID-19 vaccine making headlines over the past few weeks, employers are starting to plan for the impact this will have on their businesses. The development of a vaccine inspires hope that a return to normalcy (and for some workers – a return to the office) isn’t too far away. Some employers may be eager to require employees to get vaccinated as soon as doses are available to the general public. Employers in the health care industry may already be rolling out policies to this effect. Either way, however, there are some legal and practical implications employers should consider before rolling out this type of policy.
On December 16, 2020, the Equal Employment Opportunity Commission issued guidance on COVID-19 vaccines and the implications that may arise from a mandatory vaccination policy. Unfortunately, the guidance raises as many questions as it answers. Employers should keep in mind that this guidance focuses only on the laws that the EEOC has jurisdiction to review and that state laws that provide broader coverage, as well as other federal laws not overseen by the EEOC may be implicated.
A. What the Guidance Provides:
In the guidance, the EEOC highlights two potential reasons why an employee resist getting vaccinated, and the options available to employers in these scenarios. First, the employee might have a disability that makes it medially unadvisable or unsafe for them to receive the vaccine. Secondly, the employee might have a religious objection to receiving the vaccine. A discussion of each of these scenarios is set forth in more detail below:
- Medical disability
In its guidance, the EEOC expresses that an employer’s act of simply asking an employee if they have received the COVID-19 vaccine, in and of itself, would not be a disability-related inquiry. If, however, the employer introduces a mandatory vaccination policy and the employee shares they are unwilling to get vaccinated because of their disability, the employer will be required to follow the reasonable accommodation process required by the Americans with Disabilities Act (ADA).
If an employer feels that having an unvaccinated employee (who has a disability) will pose a safety risk at work, the EEOC states that the ADA requires the employer to demonstrate the unvaccinated employee poses “a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’.” 29 C.F.R. 1630.2(r).
The EEOC then lists four factors employers should use to determine whether the unvaccinated employee will “pose a direct threat.” Those factors include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
Even if a direct threat is found, the EEOC guidance notes employers cannot automatically terminate the employee. Instead, the employer needs to work through the ADA reasonable accommodation process to see if there is a way the employee can continue to perform their job duties despite being unvaccinated (ex. working remotely).
- Religious objections
In its guidance, the EEOC emphasizes that if an employee objects to receiving the vaccine based on religious beliefs, the employer needs to assess under Title VII of the Civil Rights Act whether providing a reasonable accommodation to the employee will create an undue hardship on the business. Like the analysis under the ADA, the EEOC notes that the exclusion from the workplace should not be automatic, and the employer should work with the employee to understand the basis for their religious objection and to determine whether a reasonable accommodation is possible.
B. Steps Employers Should Take as a Result
While there is still some time before the vaccine becomes available to the general public, employers should be proactive and review their existing policies to determine whether changes need to be made. Employers should also review their job descriptions to determine whether they are clear as to which jobs must be performed in the office and/or in close proximity to others. This will help employers understand risk areas within their own organizations should an employee be object to receiving a vaccination and understand better whether there is a basis to maintain having an unvaccinated employee will rise to the level of a “direct threat” to the health and safety of others.
The jobs most likely to be considered to cause a “direct threat” will be those requiring physical presence in the workplace and in-person interaction with coworkers and customers/clients/patients/residents, especially those employees who interact with a vulnerable population such as the elderly at a long term care facility. Upon identifying these jobs, employers should update the relevant job descriptions to include language that a qualification of the position requires in-person presence.
The new EEOC guidance makes it clear that a mandatory vaccination program will be challenging to administer uniformly. It is likely employers may find that a mandatory vaccination policy exposes the business to too much risk of liability. Further complicating the question is the challenges that an employer will face when a large number of employees refuse to be vaccinated. The EEOC guidance takes a step towards clarifying some of the questions employers have, but specific situations will need to be evaluated independently to determine the best course of action for a business, while accounting for the productivity of the business and the wellbeing of employees.