The COVID-19 pandemic has presented employers with a dizzying array of new challenges over the past year. Now that the vaccine rollout is underway, a new question emerges. Can companies require their employees to be vaccinated for COVID-19 before returning to the physical workspace?
The short answer is probably. Let’s examine what this means for businesses, especially since a December Pew Research poll found that 21% of American adults do not intend to get vaccinated and are “pretty certain” more information will not change their minds.
In May 2020, the Equal Employment Opportunity Commission (EEOC) issued a statement affirming employers’ right to mandate a vaccine when it became available. In December, the EEOC confirmed that a vaccination requirement on its own would not violate the Americans with Disabilities Act (ADA), which, in part, prohibits employers from conducting some types of medical examinations. In a Dec. 16 public information release, “What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EOC stated:
If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
However, although the EEOC says a vaccine mandate does not violate the ADA, the organization falls short of giving the practice its full green light. Therefore, there are some issues regarding vaccinations that employers, together with their counsel, need to be ready to navigate.
What is At-Will Employment?
First, employment in the US is generally considered “at will.” While the “at-will” arrangement means that both the employer and employee can terminate the employment relationship at any time and for any reason (subject to challenges, particularly on the employee side), it also means that the employer can set employment conditions around health and safety.
There are limits to these conditions, and chief among the legal challenges are religion and disability. While cases pertaining to religious discrimination frequently arise in the context of dress, grooming, or days of worship, they also concern limitations on medical intervention, which can include vaccinations.
Here’s what the EEOC states on religious discrimination. “Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices.”
However, the EEOC also states,
An employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Under this description, an employer can reasonably assume that a non-vaccinated employee compromises workplace safety. Now let’s delve a bit further into the question of what’s considered a “reasonable accommodation.”
According to Title I of the ADA, a reasonable accommodation is a “modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.”
These modifications enable an individual with a disability to have an equal opportunity not only to get a job but successfully perform their job tasks to the same extent as people without disabilities. The ADA requires reasonable accommodations as they relate to three aspects of employment: 1) ensuring equal opportunity in the application process; 2) enabling a qualified individual with a disability to perform the essential functions of a job; and 3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment.
An accommodation poses an “undue hardship” on the employer if it results in significant difficulty or expense for the employer. Determination of an undue hardship considers the following criteria:
- The nature and cost of the accommodation
- The resources available to the employer
- The operation of the employer’s business
If a particular accommodation would result in an undue hardship, an employer is not required to provide the accommodation but must consider other ones that do not pose an undue hardship. Generally, the ADA requires employers to provide reasonable accommodations for applicants’ known limitations and employees with disabilities. It’s important to note that the “undue hardship” standard is a high one. The expense alone may not be enough.
Finding a Reasonable Vaccine Accommodation for Employees
What steps can an employer take if an employee cannot or will not be vaccinated? The employer must engage in the interactive process of an individualized assessment to determine whether an accommodation can be reached. If there is no way to provide a reasonable accommodation without undue hardship that would eliminate or reduce the direct threat, the employer most likely can exclude that employee from the workplace.
In a related area, requiring proof of vaccination itself is not likely to be deemed a solicitation of private information about an employee’s actual or perceived disability. It will likely not be considered a violation of the ADA.
The EEOC states that asking employees to obtain a vaccine from an independent provider and present proof of the vaccine should not violate the ADA. However, the EEOC adds that questions such as asking why an individual did not receive a vaccination may elicit information about a disability. These inquiries would be subject to the “job-related and consistent with business necessity” ADA standards.
Reasonable accommodations may include wearing masks, work from home arrangements, or separate workspaces within or outside the office. This last option is a tricky one when a business considers unavoidable shared spaces such as elevators, common areas like kitchens or restrooms, meeting rooms, and stairwells.
Additionally, morale issues pertaining to isolation and exclusion, the latter of which can inadvertently feed into claims for discrimination or retaliation, may come into play in certain circumstances. And, since a large percentage of the nation’s office workers have worked from home for nearly a year, it will be interesting to see how undue hardship arguments fare against long term or permanent remote work scenarios.
Other Variables to Consider Regarding COVID-19 Vaccines
What are other variables that may further impact the accommodation analysis? The EEOC may adopt a “direct threat” standard when it comes to the pandemic.
According to the EEOC, a direct threat is “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.” If an individual with a disability poses a direct threat despite otherwise qualifying for a reasonable accommodation as determined by engagement in the interactive process, they are not protected by the nondiscrimination provisions of the ADA.
Based on guidance issued by the Centers for Disease Control (CDC) and public health authorities in March 2020 and adopted by the EEOC, the COVID-19 pandemic meets the direct threat standard. It does not appear that this determination has changed to date. On the contrary, and as the EEOC stated in its March 2020 position on the Covid-19 pandemic, “[t]hese facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
In close partnership with their legal counsel, employers can assess whether an unvaccinated individual poses a direct threat on a case-by-case basis via reference to certain factors:
- duration of the risk
- nature and severity of the harm
- the likelihood that the potential harm will occur
- imminence of that harm
Other variables that may become pertinent are the legal ramifications for the employer (and for that matter, the vaccine manufacturer, distributor, and shipping mechanism) should the vaccine result in side effects or harm. Legal action may well follow.
Employers will face the decision of whether to require a vaccine or “recommend” one for their workforce. Those employers who may well decide on the requirement approach will likely come from business sectors with personnel that meets the public. These sectors include healthcare workers (who are already required to get annual flu shots in 17 states), as well as food service and retail workers.
Alternatives to Mandating a Coronavirus Vaccine
Short of a specific COVID-19 vaccination mandate, what should employers do at this time? Here are a few examples of actions that may be permissible under current circumstances:
- Send an ADA-covered employee home for COVID-19 symptoms during the pandemic.
- Ask about potential exposure to COVID from employee travel to specified locations (even for personal travel) before returning to the workplace.
- Require employees to wear personal protective equipment. (Employers must meet reasonable accommodation requests for employees with a disability.
- Take COVID-19 screening steps for employees entering or returning to the workplace. Testing should be consistent with current CDC guidelines and meet the ADA’s “business necessity” standard. (Note that an antibody test is not permissible under the ADA, but COVID-19 viral tests are permitted.)
- Refuse an employee from entering the workplace if they refuse to take a temperature test, answer questions about whether they have COVID-19, have COVID symptoms, or have been tested for COVID. Any reasonable accommodation requests for screening should be granted.
- Delay the start date of an applicant with COVID-19 or its symptoms, and even withdraw an offer if the position must be immediately filled. However, an employer may not postpone or withdraw a job offer made to high-risk individuals. An employer must make all reasonable efforts for the applicant to delay or telework.
As we have been from the start of the pandemic, the professionals at Woodruff Sawyer continue to monitor the pandemic’s effects on your workplace. We include current information on our website with our Coronavirus Resource Center.
Experts from Woodruff Sawyer, Littler, and Llarena, Murdock, Lopez & Azizad will do a review of California’s recently passed AB 685 and SB 1159, both of which place mandatory COVID-19 reporting requirements on the employer.
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Gavin Newsom recently signed Assembly Bill (AB) 685, which sets new requirements for employers to notify their employees and their unions about a potential COVID-19 exposure in the workplace.