EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace
In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies.
The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs.
Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace 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.” The direct threat concept has been embedded in EEOC vernacular for years and was previously invoked for COVID-19. Earlier this year, the EEOC updated its guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” declaring that “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace” and authorizing employers to take steps to reduce workplace exposure through temperature checks and inquiries of employees.
Unlike the presence of a COVID-19 positive employee, the EEOC does not conclude that the presence of an unvaccinated employee in the workplace poses a direct threat. Rather, the burden falls on the employer to conduct an individualized assessment of the risk by considering 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. A conclusion that an employee with a disability who cannot be vaccinated poses a direct threat “would include a determination that the employee will expose others to the virus at the worksite.”
However, the direct threat conclusion does not authorize the employer to exclude that employee from physical presence in the workplace, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so that the unvaccinated employee does not pose a risk. The guidance does not specify the types of on-premises accommodations that an employer could provide to an unvaccinated employee, but urges employers to engage in the usual interactive process with the employee to identify potential accommodations and directs employers to the Job Accommodation Network for information on potential accommodations. In its undue hardship analysis, the employer must take into account factors like the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact the unvaccinated employee has with others of unknown vaccination status. COVID-19 safety standards and protocols already in place should also inform this analysis.
If the direct threat cannot be reduced to an acceptable level though reasonable accommodation, the employer is permitted to exclude the employee from physically entering the workplace, but cannot terminate the employee’s employment. In that instance, the employee may be entitled to off-premises accommodations, such as teleworking or a leave of absence under the Families First Coronavirus Response Act, other federal, state, or local leave laws, or employer-specific policies.
Employees with Sincerely Held Religious Practices or Beliefs: When an employer is on notice that an employee cannot receive a COVID-19 vaccine because of a sincerely held religious practice or belief, the employer must provide a reasonable accommodation, unless doing so would pose an undue hardship. In this context, undue hardship means “more than a de minimis cost or burden on the employer.” The EEOC directs that when a religious reason is offered, the employer should assume it is a sincerely held religious belief, unless the employer has an objective basis for questioning it.
Where Unvaccinated Employees Cannot Be Accommodated: If an employer cannot provide a reasonable accommodation to an employee who cannot be vaccinated because of a disability or for religious reasons, the EEOC directs that the employee can be excluded from the workplace, but “this does not necessarily mean that the employer can terminate the employee; employers will need to determine if any other rights apply under the EEO laws or other federal, state, or local laws.”
Employees Who Refuse to Get Vaccinated: The guidance is focused on accommodating employees who cannot receive the vaccine for medical or religious reasons. It does not address how employers should treat employees who refuse a vaccine mandate for other reasons. However, employers should pay attention to mandates in their geographic location, such as executive orders that direct remote work for all employees whenever practicable.
Vaccine Administration by Employers: The guidance provides that a vaccine administration by the employer or by a third-party with whom the employer contracts is not a “medical examination” for purposes of the ADA. However, the obligations and limitations imposed on the employer who wishes to administer the vaccine seem to discourage the employer from taking it on.
For example, employers with mandatory vaccination policies who administer the vaccine need to be careful with pre-vaccination screening questions that may constitute disability-related inquiries under the ADA. In that case, the employer must show that the questions are “job-related and consistent with business necessity.” If the employer offers the vaccine to employees on a voluntary basis, disability-related screening questions can be asked without the employer satisfying the “job-related and consistent with business necessity” standard, as long as the employee is given the choice whether to answer the questions. In the event an employee chooses not to answer the pre-screening questions, the employer may decline to administer the vaccine, but may not retaliate against the employee. If, on the other hand, an employee receives an employer-required vaccination from a third-party that is not contracted with the employer, the ADA “job-related and consistent with business necessity” restrictions do not apply to the screening questions.
Requiring Proof of Vaccination: The EEOC indicated that an employer’s request that an employee show proof of receipt of a COVID-19 vaccine is not a disability-related inquiry. However, subsequent employer questions (e.g., asking an employee why he or she did not receive a vaccination) may elicit information about a disability that would make the employer subject to the ADA standard.
The guidance is a first attempt at addressing a complicated issue and it is likely to evolve as time passes, our experience with the vaccines matures, and the new administration takes the helm. From a practical standpoint, the direct threat, undue hardship, and reasonable accommodation assessment is a highly fact-specific evaluation based on an individual employee’s job. The outcome is likely different for an unvaccinated retail worker who is frequently in contact with the public, a nurse caring for patients, and an administrative assistant seated in a cubicle behind Plexiglas with infrequent interaction with others. And, after nine months of remote work, the outlines of the analysis are unquestionably blurred. For now, the scarcity of the vaccine means that most employers can leave the decision concerning a vaccination policy to another day. But rest assured, it is coming, and preparation and careful consideration are key.
If you have any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.