The Equal Employment Opportunity Commission (EEOC) released new guidance, addressing questions of how to implement a policy of mandatory vaccination of employees without running afoul of established employment laws.
There are four main takeaways from the EEOC’s updated guidance:
Can Employers make the COVID-19 Vaccine Mandatory for Employees?
The short answer is “It depends.” As with most personnel matters, there are always a few exceptions to the rule. The notion of employers seeking to mandate vaccination is not new, even though the SARS-CoV-2 vaccine is.
Fortunately, there is established case law which addresses mandatory vaccination of healthcare workers (including emergency responders) which has existed since hospitals first began mandating flu vaccines for hospital workers in the mid-2000’s. That practice has been legally challenged, adapted, and become widely accepted among healthcare employers nationwide in recent years. However, even in instances where a healthcare worker has been required to get vaccinated, the worker must be granted an exception in limited circumstances. Those circumstances are:
Today’s guidance issued by the Equal Employment Opportunity Commission (EEOC), addresses those two primary exceptions and also provides additional considerations based on the various federal laws it is tasked with enforcing.
One of the most important takeaways from the new guidance is this: If an employee cannot get vaccinated for COVID-19 because of a disability, or sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply.
Here is a review of what the EEOC has addressed in its latest guidance:
Americans with Disabilities Act (ADA)
An employee who has a legitimate allergy or medical condition that would preclude an employee from safely receiving a vaccine would be a disability under the ADA. While a qualified disabled employee may refuse a vaccine, their employer can ask that the employee perform some other infection control technique, such as wearing a mask or continuing to work from home. The key is to engage the employee in an interactive process to determine if a reasonable accommodation can be made that does not pose an undue hardship on the employer, and does not pose a direct threat to co-workers or the public.o The existence of a “direct threat” is based upon an individualized assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.o An employer must be able to show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).
The Accommodation Process for Disabled Employees under the ADA
Employers may rely on CDC recommendations when deciding whether an effective accommodation is available which would not pose an undue hardship. There may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.
This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.
In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Employers should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
Title VII (Prohibits discrimination on the basis of race, color, national origin, religion, and sex)
An employee with a sincerely held religious belief against being personally vaccinated may not be forced to vaccinate. The employer can still require that a mask be worn, or some other measure that effectively reduces the risk of disease transmission. This begs the question of what is considered a “sincerely held religious belief?” Because of the Establishment Clause and the Free Exercise Clauses of the First Amendment, there is no clear legal definition of what constitutes a religion. However, through a body of case law that has developed on this issue, courts have been willing to broadly respect an employee’s religious beliefs, practices or observances – even if such religious beliefs are only tangentially related to religious expression, such as veganism or a general belief that a person may be healed by prayer or other supernatural power alone. Religious accommodation does not have to be granted to employees who are “anti-vaxxers,” have a personal objection to vaccines, or who simply are not convinced that vaccines are safe, if such convictions are not based upon religious belief. Reasonable accommodation for religious belief, practice, or observance is only required if it does not present an “undue hardship” on the employer. Courts have defined undue hardship as “having more than a de minimis cost or burden” on the employer. The EEOC’s recommendation is that it should ordinarily be assumed that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, you have an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, you may be justified in requesting additional supporting information.
Pregnancy Discrimination Act (PDA)
The EEOC advises that employers should accommodate a pregnant employee’s request to not be vaccinated, and for other impairments resulting from pregnancy. You should engage in the ADA-interactive process of disability accommodation for pregnant employees.
Age Discrimination in Employment Act (ADEA)
If you are picking or choosing who is “required” to be vaccinated before returning to work, keep in mind that requiring older workers (age 40 and above) to be vaccinated, while allowing younger employers to return to work without vaccination, would be a discriminatory practice under the ADEA, even if your intentions are motivated by protecting older workers who may be more vulnerable.
GINA (Genetic Information Nondisclosure Act)
GINA forbids employers from acquiring or using genetic information as a basis for decision-making related to the terms, conditions, and privileges of employment. It also forbids employers from disclosing an employee’s genetic information. The EEOC’s stance on the COVID-19 vaccine, including specifically new vaccines which use messenger RNA (mRNA) technology, is that requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information. This is due, in part, to the CDC’s statement that mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (Click here for a detailed discussion about how mRNA vaccines work).
In addition to the EEOC considerations above, Kentucky employers should also be aware of additional protections which may apply to city workers and other governmental employees:
Constitutional Protections (1st, 4th, and 14th Amendment)
There is a 1st Amendment protection of the free exercise of religion which prohibits governmental employers from taking adverse employment action for an employee’s free exercise of their religious beliefs that do not impose an undue hardship on the employer (as addressed previously). There is a 4th Amendment prohibition of unreasonable searches and seizures. Employers should be cautious of requiring any testing related to the presence COVID-19 antibodies in the employee’s bloodstream, or requiring a negative test for presence of the virus, unless it is a follow-up to a period of medical quarantine or isolation. This is a balancing of the interests of not intruding upon a citizen’s 4th amendment right not to be unreasonably searched versus the government’s interest in public safety. It is likely that the government’s interest in public safety outweighs the potential 4th amendment infringement. However, the law is not clear on this as there is no existing case law to dispute it. The employee may have a 14th Amendment right to Due Process. You should not be considering disciplinary action, or terminating an employee who refuses to be vaccinated, unless you have discussed the issue first with legal counsel. The employee may have a right to due process whether by explicit or implicit contract, collective bargaining agreement, or the employer’s past practices with respect to similarly situated employees. The employee may have a right to advance notice and a fair hearing that allows the employee to be represented by an attorney, before any negative employment action takes place which would deprive the employee of any property interests related to their job (e.g. salary and benefits).
Although the newly established Public Readiness and Emergency Preparedness Act may provide employers immunity from claims related to side effects of a vaccine or other injury at the employer’s vaccination site, this law’s protections only apply if the employer supervises or administers an onsite vaccination program. In other instances, when the vaccine is mandatory under the employer’s orders and an employee has an allergic reaction to the vaccine or other adverse side effects, such medical issues will likely be considered a compensable injury under the workers’ compensation statutes.
As a reminder it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
The latest guidance from the EEOC is not intended to interfere with or prevent employers from following CDC guidelines or other guidelines given by state and local authorities including public health authorities.
For more information on the EEOC’s latest guidance, please visit their website. Specific situations should be discussed with your city attorney and the local health department. If you have any questions about this or any other personnel related matter, you are encouraged to bring specific questions to your city attorney. For more general concerns, please contact Justin Hocking, personnel services attorney or Andrea Shindlebower Main, personnel services manager.
The ADA prohibits employers from making disability-related inquiries outside of the post-offer, pre-employment phase or when returning to work from a job-related injury or a medical leave of absence. In instances where an employee has not been injured and is not returning from medical leave, it is not appropriate to inquire of whether the employee has a disability. In other words, it is the employee’s responsibility to ask for an accommodation, it is not your job to guess whether or not they need one. The EEOC does not consider the administration of vaccination to be a medical examination. Employers should be cautious of what questions they ask employees if they use a “pre-screening process” or ask for medical history or other information that may indicate an employee’s disability, unless those questions are job-related and consistent with the public purpose of employment. This requirement does not apply to third-party contractors who are administering the vaccine to your employees. Confidential medical information must be kept confidential and separate from the employee’s personnel records. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.