Thompson Coburn LLP

Since March 2020, after many areas of the United States shut down, limited gatherings and took other regulatory action to combat the spread of COVID-19, the question of whether an employer may require employees to take the COVID-19 vaccine has been the subject of much debate. On December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued answers to technical assistance questions, including whether an employer may require employees to take a COVID-19 vaccine approved by the Food and Drug Administration (FDA) once it becomes available to the public.

Can employers require COVID-19 vaccinations?

According to the EEOC’s guidance, employers who require employees to take a COVID-19 vaccine must respond appropriately to employees who indicate that they are not able to receive a COVID-19 vaccination due to a disability or sincerely held religious belief. While employers are permitted to have qualification standards that require employees not to pose a threat to the health and safety of other individuals in the workplace, if such a safety-based qualification standard, like mandatory vaccination, screens out or tends to screen out someone with a disability, the employer would have to show that an unvaccinated employee would pose a direct threat and “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This individualized showing requires an employer to determine whether the individual poses a direct threat at the worksite based on the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the potential harm.

If the employee poses a direct threat, the employer cannot exclude the employee from the workplace or take any other action unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so that the unvaccinated employee does not pose a threat. If the employee’s work can be done remotely, one reasonable accommodation might be allowing the employee to telework. Regardless, the employer must still engage in a flexible, interactive process to identify workplace accommodations that do not impose an undue hardship.

What if an employee indicates they can’t receive a COVID-19 vaccine?

If an employee indicates that they cannot receive a COVID-19 vaccination because of a sincerely held religious practice or belief, the employer must provide a reasonable accommodation for that belief or practice unless it would pose an undue hardship. The EEOC has recommended that employers assume that employee’s request for a religious accommodation is based on a sincerely held religious belief unless the employer has an objective basis for questioning the religious nature or sincerity of a particular belief or practice, in which case the employer could request additional supporting information. It is unlikely that an employee would subscribe to a religion that prohibits vaccination because no major religion opposes vaccination and only a small minority of religious sects prohibit vaccinations. However, even prior to the COVID-19 pandemic, individuals opposed to vaccinations, or “antivaxxers,” have often misused religious exemptions to avoid vaccines. While demonstrating that accommodating an employee’s religious belief regarding vaccines would pose an undue hardship is a low burden – especially considering the risk posed to other employees, the public and the employer’s operations – the employer must still engage in an interactive discussion to determine whether a reasonable accommodation can be made and should work with their counsel when an employee claims a religious exemption to vaccination.

If an employee is unable to get vaccinated due to a disability or sincerely held religious belief and no reasonable accommodation is possible, the employer may exclude the employee from the workplace, but that does not mean that the employer may terminate the worker. Indeed, employers should consult with counsel prior to excluding any employee who cannot be vaccinated or accommodated from the workplace and certainly before terminating the employee.

Under the Americans with Disabilities Act (ADA), a vaccine is not considered a medical examination because the employer is not seeking information about the individual’s impairments or current health status. However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries. If the employer administers the vaccine, it must also show that those questions are “job-related and consistent with business necessity.” Regardless, employers must keep employee medical information from a vaccination program confidential and stored separately from the employee’s personnel file.

Can employers ask employees to demonstrate proof of vaccination?

The EEOC’s guidance further indicated that asking an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. However, pre-vaccine screening questions to determine whether there is a medical reason the employee should not receive the vaccine, whether administered by the employer or a third party with whom the employer contracts to administer the vaccine, are disability related under the ADA. Thus, if the employer requires an employee to receive the vaccination administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity,” based on the above direct threat analysis. If the employer requires proof of vaccination from a pharmacy or the employee’s health care provider, the employer should warn employees not to include any medical information as part of that proof to avoid implicating the ADA.

In some circumstances, disability-related screening questions may be asked without the need to satisfy the “job-related and consistent with business necessity” requirement if the employer offers vaccination to employees on a voluntary basis in which the pre-screening disability -related questions are also voluntary, or if the employee receives an employer-required vaccination from a third party that does not have a contract with the employer, like a pharmacy or health care provider.

Notably, an employer administering a COVID-19 vaccination to employees or requiring proof they were vaccinated does not implicate the Genetic Information Nondiscrimination Act (GINA) because it does not involve the use of genetic information to make employment decisions. Additionally, the COVID-19 vaccine uses mRNA technology, which does not modify a recipient’s genetic makeup. Pre-vaccination screening questions may or may not implicate GINA. Thus, employer requiring proof of vaccination should warn employees not to provide genetic information as part of the proof.

Can employers request employees to take a COVID-19 test?

The EEOC’s prior guidance also indicated that an employer can require an employee to take a viral test for COVID for current infections, but cannot require them to take the antibody test, which does not test current infections, prior to returning to work. If the employer can demonstrate business necessity, it may administer COVID tests before employees enter the workplace. Employers can also ask employees if they have COVID symptoms or have been diagnosed with COVID, and some even ask employees to sign a certification attesting that they do not have COVID. However, the legislature’s recent enactment of Labor Code section 6409.6, stating that “An employer shall not require employees to disclose medical information unless otherwise required by law,” indicates that the employer should avoid asking for copies of COVID test results. Similarly, the Centers for Disease Control’s (CDC) current guidance is that employers should not require copies of COVID test results. Also, while an employer could require a doctor’s note before allowing an employee to return to work, EEOC and CDC guidance notes that health care professionals are busy during the pandemic and may not be able to provide such documentation. Thus, the EEOC suggests that employers rely on local clinics for a form, stamp, or email to certify the employee does not have COVID.

Conclusion

While the EEOC’s guidance is helpful for employers who have concerns about the safety threat that COVID-19 poses to employees and the workplace, that does not mean that employers should mandate vaccinations for their employees. Rather, the employer should consider whether mandating vaccinations is job-related and necessary for their particular business. If not, the employer may still offer vaccinations on a voluntary basis. In fact, many employers are electing to offer vaccines on a voluntary basis and offer incentives to employees to get them.

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