Long before the first COVID-19 vaccine made its big debut, questions flew about whether employers could require workers to get one as a condition of employment.
The U.S. Equal Employment Opportunity Commission, or EEOC, which enforces laws against workplace discrimination, recently gave us guidance on this — sort of.
On one hand, the guidance makes clear getting vaccinated is not considered a medical examination, so employers don’t have to show that the vaccine itself meets the “job-related and consistent with business necessity” standard of the Americans with Disabilities Act, or ADA, for employee medical examinations for current employees.
However, because the Centers for Disease Control and Prevention, or CDC, recommends pre-screening questions to ensure there are no medical reasons that would prevent an individual from receiving the vaccine, the updated guidance puts employers on notice that these questions are likely subject to the ADA.
For these disability-related inquiries, employers must establish whether the questions are “job-related and consistent with business necessity” unless the vaccination is either voluntary or administered by a third party who does not have a contract with the employer.
So, if employers are going to require employees to get the vaccine on their own, can the employer ask for proof the employee was vaccinated? Yes, they can — and that is not a problem under the ADA.
Without actually ever saying a mandatory vaccination policy is acceptable, the updated guidance specifically states employers are permitted to implement a “qualification standard” that an individual “shall not pose a direct threat to the health or safety of individuals in the workplace.”
But the guidance goes on to state if such a “safety-based qualification standard, such as a vaccination requirement” screens out or tends to screen out individuals with disability, the employer must show an unvaccinated employee would pose a “direct threat” as defined by the ADA.
The EEOC notes: “If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation, absent undue hardship, as that is defined by the ADA, that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
Employers must do individualized assessments of employees who say they can’t get the vaccination because of a disability. Employers have to use a four-factor test to determine whether a direct threat would exist due to an unvaccinated employee in the workplace:
- Duration of the risk
- Nature and severity of the potential harm
- Likelihood that the potential harm will occur
- Eminence of the potential harm
Also under the ADA, the employer must make a reasonable accommodation for an employee who cannot take a vaccine due to a disability, such as teleworking, unpaid leave and other similar entitlements under federal, state and local laws. In other words, the same type of accommodations employers have made for employees who report being COVID-19 positive, experiencing symptoms or being exposed to someone with the virus must be made.
The updated guidance further notes a vaccination requirement may implicate an employee’s rights under Title VII. If employees indicate they cannot take the vaccine due to a sincerely held religious belief, the employer must provide a reasonable accommodation unless it would pose an undue hardship on the employer. And the thing to remember here is that undue hardship under Title VII does not mean the same thing as it does under the ADA.
If there is no reasonable accommodation available for an employee who cannot get vaccinated for COVID-19 due to a disability or sincerely held religious belief, the guidance provides it would be lawful for the employer to exclude the individual from the workplace. Importantly, this does not mean that an employer may automatically terminate the employee.
Bottom line: there’s no one-size-fits-all playbook for exceptions to employer vaccine requirements. Individualized determinations are a must — and require an appropriate legal lens.
Steven A. Palazzolo is senior counsel in the law firm Warner Norcross + Judd LLP who concentrates his practice in labor and employment issues for employers. He can be reached at email@example.com.