COVID-19 Vaccinations: Concerns for Employers

After the federal government approves emergency COVID-19 vaccines, employers across the country are questioning whether they can legally require workers to be vaccinated against COVID-19. The short answer is yes. But as with most aspects of running a business during the pandemic, there is no single answer and certain exceptions may be required. This warning examines several legal considerations employers should weigh up when considering their approach to this important public health development.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised guidelines to address several frequently asked questions related to administering COVID-19 vaccinations to employees. Although the EEOC makes it clear that the Federal Labor Act does not prevent employers from mandating COVID-19 vaccination as a condition of employment, employers must consider two categories of exemptions from any vaccination mandate: bona fide religious objections to vaccinations under Title VII of the Civil Rights Act ( Title VII) and Disability-Related Objections under the Americans with Disabilities Act (ADA). Confidentiality concerns also arise under both the ADA and the Genetic Information Nondiscrimination Act (GINA). State laws can also influence the analysis.

Disability concerns

In responding to employees who raise disability-related objections to mandatory COVID-19 vaccinations, employers must first determine whether an unvaccinated employee poses a direct threat to the health or safety of others in the workplace. This requires an individual 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 imminent danger.

If an employer determines that an unvaccinated employee is a direct threat because the employee exposes others to the virus at work, an employer must “use a flexible, interactive process to identify options for placement in the workplace.” This concept is known to employers who have worked for the accommodation of workers with disabilities. Reasonable precautions in this case may include continuing the precautionary measures from the height of the pandemic, e.g. B. Mandatory mask wear, social distancing, routine COVID-19 testing, and remote working where possible. An employer is not required to take reasonable accommodation when it would cause undue hardship.

If reasonable accommodation fails to reduce the direct threat to an acceptable level or presents undue hardship, an employer can legally bar an employee from physically entering the workplace. The EEOC warns that “exclusion” from the job does not necessarily mean dismissal. An employer must first determine whether an employee is entitled to any other right under federal or state law, including whether or not an employee is eligible under the Family First Coronavirus Response Act (see summary here and here), the Family and Medical Leave Act, May take vacation or employer’s vacation policy.

It is important to evaluate the circumstances of each disabled employee individually and to avoid stereotypical reactions. For example, the analysis of what would be reasonable accommodation or unreasonable hardship for a disabled administrator may vary depending on whether the employee has worked in a nursing home or an accounting firm.

Religious concerns

As with disability exemption requests, an employer must consider exemptions for employees based on a worker’s righteous religious beliefs or practices, unless the provision of accommodation would result in undue hardship on the employer. Courts have defined unreasonable hardship differently under the ADA than under the religious protection of Title VII. Religious accommodation is unreasonable hardship when the employer has more than minimal costs or burdens.

The EEOC recommends that an employer should normally assume that a worker’s application for religious placement is based on a sincere belief, as the “definition of religion is broad and protects beliefs, practices and observances that the employer may not be familiar with is “. In general, personal, political, sociological, or economic objections to vaccines are not sufficient to establish a sincere religious belief or to establish a need for shelter.

Questions and confidentiality before screening

Employers should be careful not to become over-indulgent in the collection of health information related to vaccinations, whether or not they are compulsory. The EEOC advises that administering the COVID-19 vaccine, including answering questions prior to screening to determine if an employee has an illness that affects their ability to receive the COVID-19 vaccine, represent disabled-related inquiries within the framework of the ADA and trigger confidentiality obligations according to GINA.

While these confidentiality obligations are not insurmountable, employers should consider requesting proof of vaccination rather than self-administering the vaccine as COVID-19 vaccines become more widely distributed and made available to the public.

Dealing with the myriad of legal issues associated with requiring or promoting COVID-19 vaccinations in the workplace will be difficult for even the most discerning of employers, especially in this evolving legal landscape. If you have any questions regarding the requirement or funding of COVID-19 vaccinations, please contact one of the authors or another member of the Lewis Rice Labor and Employment Group.

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