By David R. Vance*
As individuals begin receiving COVID-19 vaccines throughout the country, many employers are wondering whether they can require their employees get a vaccine. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 technical assistance guidance (available here) to include a new section addressing vaccines. The EEOC’s updated guidance suggests employers may require employees to get the vaccine, but it identifies multiple limitations.
Employers considering a mandatory vaccination policy should first determine whether such a policy makes sense for their organization. When making this determination, a key consideration is whether an unvaccinated employee poses a direct threat to the health or safety of individuals in the workplace. Employers answering yes to this question, like those with high-risk work environments (e.g., healthcare) or that regularly interact with high-risk individuals (e.g., the elderly), have stronger rationale for implementing a mandatory vaccine policy than employers that answer no. Employers answering no should consider encouraging employees to get the vaccine, as compared to mandating that they do so.
The updated EEOC guidance addresses the impact the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”) may have on an employer vaccine mandate.
ADA
Getting the vaccine is not a medical examination under the ADA. However, for those employers that intend to directly administer the vaccine to their employees, or contract with a third party to do so, the pre-screening questions likely will elicit information about whether an employee has a disability. Per the EEOC, if an “employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are ‘job-related and consistent with business necessity.’”
Under the ADA, employers may institute safety measures, like vaccination mandates, that are job-related and consistent with business necessity. To apply a vaccination mandate to employees who are unable to get a vaccine due to a disability, employers must 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 [in the workplace] that cannot be eliminated or reduced by reasonable accommodation.’”
The EEOC guidance does not identify accommodations that would allow employees, who due to a disability are unable to get a vaccine, to remain in workplace. Earlier this year, though, a Massachusetts federal court suggested wearing a mask was a reasonable accommodation for an employee who refused to get a mandatory flu vaccine. Other courts similarly have concluded that requiring an unvaccinated employee to wear additional personal protective equipment may be a reasonable accommodation.
Assuming a direct threat exists and a reasonable accommodation is not available, an employer can refuse to allow an unvaccinated employee into its workplace, but this does not end the inquiry. Before discharging the employee for refusing to get a vaccine, the employer must consider whether allowing the employee to work remotely or other accommodations would be reasonable. If the employee’s disability only delays the employee’s ability to get a vaccine, employers should consider other accommodations like unpaid leave before discharge. As with all accommodation requests, it is imperative that employers engage in the interactive process with any employee seeking an accommodation.
Title VII and Religion-Based Accommodations
If an employee has a sincerely held religious belief, practice, or observance preventing the employee from getting the vaccine, the employer must provide the employee a reasonable accommodation or demonstrate that the employee not getting the vaccine would place an undue hardship on the employer (i.e., more than de minimis cost or burden on the employer). Generally, employers should take employee claims of a limiting sincerely held religious belief, practice, or observance at face value. However, as explained by the EEOC, if “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
GINA
Requiring an employee to get a COVID-19 vaccine does not violate GINA. However, GINA would cover pre-vaccine screening questions that elicit genetic information, including family medical history. To avoid both GINA and related ADA issues, employers should avoid administering the vaccine internally. Instead, employers with a mandatory vaccine policy should request that employees provide proof of vaccination, including a warning not to provide covered genetic information with any proof of vaccination provided.
While not addressed in the EEOC’s recent guidance, employers contemplating a vaccine mandate also should consider the following questions.
Does a collective bargaining agreement apply
Employers with unionized workforces should review their collective bargaining agreements before unilaterally implementing a mandatory vaccination requirement, as there likely will be bargaining obligations related to implementing such a requirement.
Are there any possible workers’ compensation issues
Whether an injury is work related and compensable under Ohio’s workers’ compensation laws is often very fact specific. Injuries arising from vaccinations are no different. Several Ohio courts have addressed vaccinations and focused on whether the employer required the employee to get vaccinated or simply encouraged the vaccination. In 1934, the Ohio Supreme Court held that the death of an employee following a vaccination was work-related and entitled his surviving spouse to death benefits. Spicer Mfg. Co. v. Tucker, 127 Ohio St.421, 188 N.E.2d 870 (1934). A different result occurred in Rolsen v. Walgreen Co., 8th Dist. Cuyahoga No. 104431, 2016-Ohio-8304. Rolsen filed a claim for workers’ compensation benefits after he developed cellulitis following a pneumonia vaccination. He was vaccinated during work hours at the Walgreens store where he worked by what the court suggested was one of his Walgreens coworkers. Nevertheless, the court disallowed Rolsen’s claim holding that his injury did not occur “in the course of his employment.” The court stressed that Walgreens encouraged but did not require its employees receive the vaccination. The takeaway from these decisions is that complications from an employer mandated vaccination by an employer-specified health care provider will likely result in a compensable workers’ compensation claim. Complications arising from vaccinations that are simply encouraged by employers will not be compensable injuries.
What are the practical considerations of a mandatory vaccine policy
Polls indicate that many people remain hesitant to get a vaccine. As a practical matter, employers wishing to mandate vaccinations need to consider whether they are willing to discharge strong, long-term performers who refuse to get vaccinated. In the alternative, what happens if the employer only encourages their employees to get the vaccine and an employee, client, or customer gets infected with COVID-19 in the workplace? As to this concern, Ohio recently granted employers civil immunity from COVID-19 claims (see related article here for more information).
Does it matter that the Food and Drug Administration (“FDA”) is approving vaccines under Emergency Use Authorizations
U.S. Surgeon General Jerome Adams thinks so. Emergency Use Authorization is different than full approval under FDA vaccine licensure requirements. Due, in part, to this distinction, on the same day the EEOC issued its updated guidance, Surgeon General Adams said, “[r]ight now, we are not recommending that anyone mandate a vaccine.”
Whether an employer should institute a mandatory vaccine policy, encourage employees to get a vaccine, or not address the matter varies greatly by employer and implicates a number workplace laws that employers should discuss with counsel. Vaccine or no vaccine, employers should continue to abide by applicable CDC guidance and government orders and recommendations.
*David R. Vance, an OSBA Certified Specialist in Labor & Employment Law, regularly advises clients on COVID-19’s impact on the workplace. If you have questions about mandating vaccines or other COVID-19 related issues, please contact David at drv@zrlaw.com or (216) 696-4441.
