As pandemic restrictions gradually lift and the prospect of workers returning to work becomes a reality, many employers are wondering whether they can or should make the COVID-19 vaccine a mandatory requirement as a prerequisite for employment or continued employment. The short answer is, the latest EEOC guidelines allow employers to require workers to be vaccinated, subject to certain exceptions, requirements and reservations discussed below. One critical question, however, is whether employers should mandate COVID-19 vaccinations. First, many states like California haven’t addressed the issue while other states are considering laws to prevent state and local governments and private companies from mandating COVID-19 vaccinations. Second, there are several issues to consider before deciding whether an employer should require a COVID-19 vaccine as a condition of employment or continued employment.
The EEOC guidelines
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on whether employers can require their employees to take a COVID-19 vaccine under federal law. Rather than answering directly the question of whether employers can require all workers to be vaccinated as a condition of employment or continued employment, the EEOC guidelines address questions related to exemptions (in the form of questions and answers) that employers must consider when they do adopt binding vaccination guidelines. The EEOC approach at least implies that a binding vaccination guideline is legally permissible under federal Law. The EEOC makes it clear that employers are required to address religious objections under Title VII of the Civil Rights Act (“Title VII”) and disability-related objections under the Americans with Disabilities Act (“ADA”).
Questions about disability-related pre-screening
In the guidelines of the EEOC it was made clear that the vaccination is not regarded as a “medical examination” and therefore does not per se provide any information about the state of health of the employees.
However, employers who self-administer the vaccinations (which is most likely in the healthcare industry) or who contract with a provider must consider the ADA’s prohibition of questions related to disability when asking pre-screening questions. In order to avoid possible violations of the ADA, employers must demonstrate that the questions 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 a worker who does not answer the questions and therefore does not receive a vaccination poses a direct threat to the worker’s health or safety, or otherwise. It is also important that employers avoid asking questions that could generate a worker’s genetic information in violation of Title II of the Genetic Information Non-Discrimination Act (“GINA”).
To avoid the above issues, an employer should consider having their employees get the vaccination from a third party (such as a pharmacy or state health agency) who is not contracted with the employer.
Reasonable accommodation for disabilities or religious beliefs
An employer must use the reasonable accommodation process if an employee objects to the vaccine because of a disability or a genuine religious practice or belief.
Disability. Some examples of disabilities that may prevent employees from receiving the COVID-19 vaccine include life-threatening allergies, illnesses affecting the employee’s immune system, or in the case of a recent Third Circuit Court of Appeals litigation [Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35 (3d Cir. 2018)] – a serious and well-documented fear associated with the side effects of vaccination. In that case, the former employee, who was a nurse with severe anxiety and eosinophilic esophagitis, filed a lawsuit against her former employer for terminating her employment for refusing to receive a required vaccine for tetanus, diphtheria and pertussis (TDAP) get violation of ADA.
If an employee objects to the use of the COVID-19 vaccine because of a disability, the employer must prove that the unvaccinated employee has a “significant risk of significant damage to the health or safety of the individual or other people who cannot , poses a direct threat, can be eliminated or reduced through appropriate precautions. “29 CFR 1630.2 (r). There are four factors that determine whether there is a direct threat: the duration of the risk, the nature and severity of the potential harm, the likelihood of the potential harm occurring, and the imminent threat of the potential harm.
If the employer determines that there is a direct threat, the employer cannot exclude the employee from the job or take other action unless there is no way to take reasonable precautions (without undue severity) to counter that risk Eliminate or reduce the unvaccinated employee does not pose a direct threat. The employer must determine whether other rights apply under EEOC laws or those of other federal, state and local authorities. For example, if an employer excludes an employee because they are unable to comply with a vaccination waiver application, the employee may be entitled to accommodation, e.g. B. performing the current position remotely and transferring the employee to another vacancy does not pose a direct threat if the employee is not vaccinated or has unpaid leave. Employers are required to use a flexible, interactive process to determine if accommodation is available that does not present undue hardship (significant difficulty or cost). This is an individual assessment and should be handled on a case-by-case basis.
Religious views. The employer must follow the same reasonable precautions and interactive process procedures if an employee objects to the use of the vaccine because of a genuine religious practice or belief. The courts throw up a fairly broad network of what religious beliefs offer protection under Title VII. Religious beliefs may be newly adopted, inconsistently observed, not be part of the religious practice of a formal church or sect, or be different from the generally observed tenants of the religion of the individual. As an example of the broad interpretation of righteous religious beliefs, courts have found that veganism can represent a religion in which an employee protests about being given a vaccine that contains animal products such as eggs. See Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1: 11-CV-00917, 2012 WL 6721098, at * 1 (SD Ohio, December 27, 2012). Religious placement is required unless it constitutes “unreasonable hardship” which, under Title VII, is marked as more than “de minimis costs or burden on the employer”. Unless the employer has an objective basis for questioning the sincerity of the employee’s religious beliefs, it is advisable not to challenge the employee.
If an employee cannot be vaccinated against COVID-19 due to a disability or a genuine religious belief, practice, or observance and reasonable accommodation is not available, it is lawful for the employer to exclude the employee from the job. However, this does not mean that the employer can automatically terminate the employee. Employers need to determine if other rights apply under the EEOC or other federal, state and local authorities.
Additional issues to consider before requesting the vaccine
Mandating the vaccine, in the event of an adverse reaction, could potentially lead to liability on the part of the employer under the employee compensation scheme, if found to be done at the instruction and for the benefit of the employee. On the other hand, a unionized employer may need to negotiate vaccination programs and at least keep their unions informed.
When employers make vaccination compulsory, they should be willing to pay for (1) vaccination, (2) the time it takes an employee to vaccinate, and (3) sick leave related to vaccination.
Employees can have general objections to receiving a COVID-19 vaccination, regardless of medical or religious reason. If this is widespread, it could create a difficult situation for the employer. Therefore, the consideration of encouraging and incentivizing employees to vaccinate may be a better approach. Employers should also be careful not to violate the EEOC’s wellness policy on “incentives”.
Regardless of whether vaccinations are compulsory or voluntary, employers should develop a written policy to combat COVID-19 vaccination.
Farewell shot. There are several legal and practical aspects to consider before implementing a binding vaccination guideline. The EEOC, CDC, OSHA and government agencies are expected to provide additional guidance to employers to address these issues as vaccination becomes more available. Employers should continue to monitor federal, state and local authorities for further guidance.
Given the complexity of the issues, an employer should consult a qualified labor lawyer when considering whether to require employees to take a COVID-19 vaccine.
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