Collision industry recruitment attorney Cory King said last month that workshops and other businesses can require workers to receive COVID-19 coronavirus vaccinations. However, the company could find itself in a “pack of trouble” without prior training and seeking help on the matter, he said.
This is a good time to bring up our usual caveat: none of the comments and analysis presented here are intended as legal advice. They are for informational purposes only. Before taking any action, seek advice from a qualified lawyer licensed in the applicable jurisdiction.
“The short answer is, yes you can,” said King, a lawyer at FordHarrison, of vaccination requirements in the workplace. But it’s more complicated than that, he told the collision industry conference on April 21st. King said they had “seen a lot of employers screw it up”.
One of the possible dangers is the questioning of prequalification before vaccination. It’s possible these investigations could spark a violation of the Americans with Disabilities Act – especially if the employer has its own vaccination clinic, King warned. The employee answers a question to the employer and the employer is assumed to have access to the answers, he explained.
If the vaccine gets heavily sponsored by the company but is ultimately voluntary and the questions are voluntary, the company could be on safer ground, according to King.
“Pre-vaccination medical questions are likely to provide information about a disability,” the Equal Employment Opportunity Commission wrote in December 2020. This means that such questions, when asked by the employer or a contractor on behalf of the employer, are under the ADA Are “disabled-related”. If the employer requires an employee to receive the vaccination given by the employer, the employer must demonstrate that these disability-related screening requests are “job-related and consistent with business need”. To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and therefore does not receive a vaccination poses a direct threat to the health or safety of himself or herself or others . “
That ADA issue isn’t an issue, according to King, when employees arrange their work-related vaccines themselves at third-party locations like local drug stores rather than through an employer-hosted clinic.
In contrast, there are two circumstances in which disability-related screening questions can be asked without the requirement of being ‘job-related and consistent with business need’, “the EEOC wrote in December 2020.” First, if a Employer has done so ADA offers employees vaccination on a voluntary basis (i.e. employees decide if they want to be vaccinated). The employee’s decision to answer disability-related questions prior to screening must also be voluntary. 42 USC 12112 (d) (4) (B); 29 CFR 1630.14 (d). If an employee does not answer these questions, the employer can refuse to give the vaccine but cannot hit back, intimidate, or threaten the employee for refusing to answer questions. Second, if an employee receives an employer-prescribed vaccination from a third party who does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA disability limitation is deemed to be “job related and consistent with business need “-Related inquiries would not apply to the pre-vaccination medical screening questions. “
However, should the employee go to a third party and refuse to answer the pre-screening questions or refuse the vaccine based on their responses, “you can’t ask them why they weren’t vaccinated,” King said. Your request could be against the ADA and “crossed the line into a place you don’t want to be,” he said.
The company may need to house the worker or give them another opportunity to pursue the vaccine, he said.
A business may also need to be aware of the possibility for an employee to seek a religious or “sincere” religious release, which is protected by Title VII of the Civil Rights Act. In such circumstances, an employer may need to take reasonable precautions.
King said the law is very broad and employers should not ask workers if they sincerely believe in it. If the clerk tells you to hit the sand for Title VII reasons, this is not the time to pick the fight, King said.
King said he had come across numerous cases of employers saying they told an employee, “I don’t care what religion says,” and shouldn’t go back to work. The company believed that public health trumps religion.
“Not exactly,” said King. In fact, the employee “probably was right,” he said.
Instead, be courteous telling an employee who cites a Title VII exception that you will deal with it and calling an employment law attorney, King said. The employer could be on “very dangerous ground,” but “you can do it,” King said.
It is possible that the workplace can claim that placing a customer would be undue hardship for an employer, according to King. The EEOC said on Wednesday that the Supreme Court had defined “undue hardship” worthy of an employer exemption as “more than just de minimis costs”. The Agency calls this a lower bar for employers to get a lodging exemption than the ADA’s definition of “an action involving significant difficulty or expense”.
What about other reasons an employee gave for refusing to be vaccinated, such as: B. Beware of side effects or conspiracy theory?
Vaccine fear, for example, “won’t be a protected category,” King said. However, an employer should consult a labor lawyer before dismissing or overriding such an employee and ordering a vaccine, he said.
When the worker’s argument falls into a protected category, “you have to be very, very careful,” King said.
“Social, political or economic philosophies and mere personal preferences are not religious beliefs protected by Title VII,” explains the EEOC. “However, it does not place an overlap between a religious and a political point of view outside the scope of the protection of religion under Title VII.”
According to King, many other problems could arise with employers who need a vaccination in addition to the vaccinations presented here. Possible considerations could include organized work, OSHA regulations, and wage and hourly policies. We repeat: consult a qualified professional before taking action.
According to the Centers for Disease Control, at 6 a.m. on Tuesday, 46.2 percent of the population and 58.5 percent of American adults (18 years of age or older) received at least one vaccine. According to the CDC, 35.1 percent of Americans and 44.7 percent of adults are considered fully vaccinated.
“What you should know about COVID-19 and the ADA, the Rehabilitation Act and other EEO laws”
Equal Opportunities Commission, December 16, 2020
EEOC COVID-19 website
COVID-19 Vaccine Centers for Disease Control website
Featured Images: FordHarrison attorney Cory King discussed considerations for employers in need of COVID-19 vaccines at the Collision Industry Conference on April 21, 2021. (John Huetter / Repairer Driven News)
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