Archives for December 2020

On December 16, 2020, the EEOC issued updated guidance on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA). https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The high-level takeaways from the guidance are:

1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below);
2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence.
3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary.
4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee.

An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.

As we anxiously await the roll-out of the COVID-19 vaccine, employers are undoubtedly wondering if they can or should make the vaccine mandatory.  Currently, there is no law banning such a mandate.  However, if an employer puts such a mandate in place, it must consider making exceptions in compliance with Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA).  Note:  Title VII and the ADA only apply to employers with 15 or more employees.

Specifically, employees who object to a vaccine based on a sincerely held religious belief may be entitled to an exemption under Title VII.  Likewise, an employee may be entitled to an exemption based on an ADA disability that prevents the employee from taking the vaccine.  An employer can deny an employee’s religious or medical exemption request if the employer can prove the exemption would impose an undue hardship on the employer or pose a direct threat to the health and safety of others.  Determining whether an undue hardship or direct threat exists is a very fact-intensive, case-by-case inquiry.  Health care providers, first responders, schools, nursing homes and other business that service high risk populations or work in high risk environments will likely pass the undue hardship/direct threat test.

Because of the potential legal complications with mandating a vaccine, employers may opt instead to establish a policy aimed at encouraging, rather than mandating, employees to get vaccinated.  The encouragement can take the form of setting up free on-site vaccination clinics and/or offering incentives to employees who get vaccinated.  See CDC guidance on Promoting Vaccination in the Workplace.  https://www.cdc.gov/flu/business/promoting-vaccines-workplace.htm#anchor_1554819279614.