Saturday 19th December 2020
Long before the FDA approved the first COVID-19 vaccine, many employers pondered whether vaccinating workers should be a voluntary or compulsory condition for returning to or staying at work. Current legal considerations for vaccinating workers depend on the interpretation of many existing laws and other sources of workers’ rights in the workplace. Such rights are established not only by law, but also by collective bargaining and, in some cases, by the industry in which the employer does business. In addition, there are compelling business considerations that are unique to every employer and should influence whether COVID-19 vaccination should be mandatory or simply encouraged for employees.
In addition to other previously published guidance, the Equal Employment Opportunity Commission (EEOC) has now presented its current interpretation, which may certainly change how employers might deal with the agency enforced laws
Volunteers COVID-19 vaccination
The new EEOC guidelines generally pave the way for employers to encourage workers to voluntarily receive vaccinations. The decisive factor here is the EEOC’s clear statement that it does not regard vaccinations themselves as “medical examinations” which, according to the ADA, require special justification. The EEOC states that the simultaneous need to answer questions about pre-vaccination medical screening can imply ADA rights and employers must demonstrate that vaccination of workers is “job related and consistent with business need”. However, the EEOC makes an exception to this duty to justify “if an employer has voluntarily offered employees a vaccination”.
Compulsory COVID-19 vaccination for employees
EEOC’s new guidelines do not prevent employers from making vaccination of workers a compulsory condition to stay or return to work, but they do pose an obstacle course for employers if they choose to be vaccinated with COVID -19 to be made mandatory.
The obstacle course begins with the medical screening questions that are required before employees receive the vaccination. As mentioned earlier, the EEOC states that answering these questions may imply employees’ ADA rights. Therefore, any employer who prescribes a vaccination that either administers or completes the mandatory vaccine administration itself must demonstrate that the mandatory vaccination requirement is “job related and consistent with business need” for which the employer requires vaccination. Employers can bypass this obstacle if they are willing to accept proof of compulsory vaccination carried out by “a third party who does not have a contract with the employer, such as a pharmacy or other healthcare provider”. But employers who accept such a vaccination certificate are also warned to “warn the employee not to provide medical information as part of the certificate”.
The obstacle course continues in how employers who require vaccinations must deal with workers who are against vaccination because of a disability or religious belief. In both cases, it is necessary that the employer channel these workers through a “flexible, interactive process” that openly examines the nature of the objection and whether reasonable arrangements can be made to allow the worker to continue working. If a disabled employee can only continue to work if he is present at the workplace, the employer must be able to demonstrate, according to the legal standards of the ADA, that the unvaccinated employee represents a “direct threat” that represents a “significant risk of significant harm” for the health and safety of the individual or other persons, which cannot be eliminated or reduced through reasonable precautions. “Even if“ reasonable accommodation is not possible ”, the EEOC’s view is“ this does not mean that the employer can automatically terminate the employee ”without first determining“ whether other rights under the EEO laws or other federal, State or local authorities apply ”.
Practical realities and implications
When opening the new “Vaccinations” to supplement its guidelines, the EEOC includes a disclaimer type statement: “The EEO laws do not interfere or prevent employers from following the guidelines of the CDC or any other federal, state or local health agency Suggestions. “Accordingly, employers should be sure to obey such authorities. However, to date, neither the CDC, nor any federal, state, or local health agency has mandated that a group of employees must receive the COVID-19 vaccination in order to be in the workplace To stay or return to work. Assuming that this continues to be the case and there are no other laws or guidelines on the subject, any employer wishing to obtain mandatory vaccinations should consider and determine their business and particular circumstances how to overcome every obstacle in the course of the EEOC in se dated December 16, 2020.
1 With a widely anticipated December 16, 2020 update to its publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws,” the EEOC addresses vaccinations under the laws it enforces and the Ensure relevant labor rights, including the rights of workers with disabilities as protected by the Disabled Americans Act (ADA), the rights of workers who may have religious objections to receiving a vaccination, under Title VII of the Civil Rights Act of 1964 (Title VII)) and the right not to allow employers to use genetic information in accordance with Title II of the Genetic Information Non-Discrimination Act (GINA).
© 2020 Greenberg Sad, LLP. All rights reserved. National Law Review, Volume X, Number 354