Mandating COVID-19 Testing and Vaccination within the Office

Employers should set clear, consistent guidelines for the coronavirus and carefully consider placement.

The novel coronavirus has brought about changes in medical testing in the workplace. As policy makers work on plans to distribute COVID-19 vaccines, employers are now questioning the legality of mandatory COVID-19 vaccinations.

The Equal Employment Opportunity Commission (EEOC) has provided some guidance on COVID-19 testing. However, there are no current guidelines or rules for mandatory COVID-19 vaccinations. The EEOC previously issued guidelines on compulsory flu vaccination, which said vaccination against COVID-19 should be recommended rather than mandatory.

Given the significant impact of COVID-19 and the highly contagious nature of the virus, many employers may choose to have mandatory testing or vaccinations as soon as they become available. To help employers comply with the law, we suggest guidelines for testing and vaccination in the workplace.

Testing. Mandatory workplace medical tests are governed by the American With Disabilities Act (ADA), which is designed to protect applicants and workers from discrimination based on a disability. In March 2020, in response to the COVID-19 pandemic, the EEOC updated its Pandemic Prep Guidelines, which outlines acceptable COVID-19 testing practices. As part of the ADA, any medical exam or question that may raise information about a disability must be job-related and business need. In general, these qualifications are met when an employer “has a reasonable belief, based on objective evidence, that: a worker’s ability to perform essential professional functions is impaired by an illness; or an employee poses a direct threat due to illness. “

A direct threat is defined as “a significant risk of significant harm to the health or safety of an individual or other person that cannot be eliminated or reduced through reasonable precautions”. The Centers for Disease Control and Prevention (CDC) has determined that the COVID-19 pandemic meets the “direct threat” standard, which opens the door to mandatory workplace testing that meets ADA guidelines.

While mandatory testing is allowed, employers should develop consistent, objective internal guidelines regarding COVID-19 testing. Testing only certain groups of workers can discriminate against an employer if the lines are drawn on the basis of protected classes. Employers also need to consider people who refuse to test and determine what accommodations may exist for them.

ADA requires reasonable accommodation for individuals applying for disability due to ADA coverage. Employers are required to provide shelter unless it would constitute “undue hardship” on the employer, defined as “an action involving significant difficulty or cost” when taking into account the nature and costs, available resources and operation of the business. Inappropriate hardship is a relatively high threshold, and the EEOC warns that accommodations cannot be turned down just because they cost money. Employers need to weigh the costs against their available budgets.

People requesting accommodation on the basis of religious beliefs are faced with a lower standard, so employers can refuse accommodation that is more than just a “de minimis” cost to business. In addition, under the ADA, employers are not required to provide people who request accommodation based on personal convictions, rather than accommodation for religious or disabled people. However, all rejections should be documented in order to comply with the guidelines of the health and safety authority for maintaining a safe, COVID-free workplace.

Permitted medical exams under EEOC guidance may include asking questions about the symptoms listed by the CDC and testing for COVID-19 (but not antibody testing). For each of the options selected, all medical information collected must be kept confidential, and the ADA requires that employee medical information be kept separate from existing employee personnel files.

Vaccination. Vaccines for COVID-19 are gradually becoming available – but the EEOC has yet to issue guidance on what employers may ask for as they become more widely available. However, the EEOC has indicated that its position on compulsory flu vaccination would likely apply to a COVID-19 vaccine as well, which provides some guidance. Employers can prescribe flu vaccinations; Some states already require it for certain industries such as health and education, as do some private employers. As with mandatory testing, the right to get vaccination is limited and employers should understand the exceptions required.

The legal framework is similar to the exemptions from the mandatory test. Individuals may opt out of mandatory vaccination based on an ADA-covered disability or a genuine religious belief, practice, or compliance. In both situations, extensive documentation and interactive communication with the employee are required to determine if accommodation is available and whether the employee’s request requires such accommodation.

Employers can take the following precautions: additional personal protective equipment, change of job or task, teleworking or even leave of absence. As with testing, accommodation is not required if it causes undue hardship. Accommodation is also not required for medical exemptions such as allergies, but employers can provide such accommodation. In addition, employers should review collective agreements with union employees for relevant consent requirements.

Some states have provided immunization exemptions for people of personal belief. These exemptions can also apply to COVID-19 vaccines.

As with tests, employers can refuse to include disabilities if they believe the employee is a “direct threat” to the company. Employers should establish objective and consistently applied guidelines on which to base such determinations. These guidelines should inform employees of the expectations, provide information about available exceptions and the procedure for requesting an exception, and include a clear confidentiality statement and privacy policy.

The health, education, and hospitality industries are already familiar with mandatory vaccination protocols for the flu, and they are well positioned to apply the same guidelines to COVID-19 vaccinations. However, with COVID-19 having a greater national impact – and due to its highly contagious nature – more industries can introduce binding vaccine policies, some for the first time.

The longstanding fears of a violation of the rights of the individual as well as the legal consequences of a violation are a burden on employers. To prevent rights-based problems from arising, employers should review any updates to the EEOC guidelines that may be released as vaccines become increasingly available.

All medical records must be kept confidential for anyone receiving a vaccine, whether they receive the vaccine at work or provide evidence of compliance. The ADA stipulates that all medical records received must be kept separate from employees’ personnel files.

As the COVID-19 pandemic continues, many employers are facing the challenge of reopening and getting back to work. You can reasonably consider mandatory testing and vaccinations as part of your reopening strategy. When employers conduct mandatory testing or mandatory vaccination, they should adopt a clear, consistently applied policy that follows EEOC guidelines and gives serious consideration to any appropriate requests for accommodation.

Tony Yang is Professor and Executive Director of the Center for Health Policy and Media Engagement at George Washington University.

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss is Professor and James Edgar Hervey ’50 Chair of Litigation at the University of California’s Hastings College of the Law.

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