As the new year rolls in, the COVID-19 vaccine is on everyone’s mind. The Pfizer vaccine has officially been distributed throughout the United States (albeit through a more limited Emergency Use Authorization process) and rumors are circulating that the FDA will approve the Moderna vaccine any day now. For most employers, this is new territory. In fact, there has been little guidance, if any, on whether an employer can mandate vaccination in the workplace. On December 16, 2020, the EEOC issued new guidance, updating its COVID-19 FAQ to provide some much-needed clarification for employers contemplating vaccination strategies.
It is worth noting, however, that the EEOC’s guidance applies solely to comply with the federal EEO laws that the EEOC enforces, and not with any other regulatory scheme or rules enforced by another government body. Furthermore, the new guidance should not necessarily be read to suggest that the EEOC is giving a blanket authorization for employers to create mandatory COVID-19 vaccine policies under any and all laws, but rather is advising on what employers need to do if they choose to create a mandatory vaccine policy in order to comply with EEO laws. Below are the top 5 things to know from the EEOC’s guidance. Look out for additional Top 5 Tips as we gain more information on the COVID-19 vaccine.
1. Administration of a COVID-19 vaccine is not a medical examination
Under the Americans with Disabilities Act (ADA), a “medical examination” must be job-related and consistent with business necessity, and information gained from a medical examination must be treated as a confidential medical record. However, the EEOC guidance confirms that administering a vaccination itself is not a medical examination. In other words, if a COVID-19 vaccine is administered to an employee by an employer (or someone with whom the employer contracts), and the employer is not seeking information about an individual’s impairments or health status, the administration of the vaccine is not a medical examination under the ADA. Pre-screening vaccination questions, however, may fall within the ADA’s disability-inquiries provision and, therefore, the administering employer must show that the pre-screening questions are job-related and consistent with business necessity. Further, employers must keep confidential any employee medical information obtained in the course of the vaccination program. In all cases, the EEOC’s guidance suggests that employers are better off in any mandated vaccine policy to have employees get vaccinated through a pharmacy, health care provider, or other entity not within the employer’s control, rather than directly administered by the employer or its agent.
2. Proof of vaccination is not a disability-related question
An employer may ask its employees for proof of receipt of a COVID-19 vaccination. This inquiry on its face is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry under the ADA. The EEOC cautions employers, however, that asking follow-up questions of employees who refuse to get a COVID-19 vaccine, may elicit disability-related information, and thus may then trigger ADA standards. Additionally, employers that require proof of vaccination from a physician or pharmacy should instruct employees that they are not to provide any medical information as part of their proof.
3. The EEOC suggests that employers may require their employees to receive a COVID-19 vaccine, but must allow for accommodations
The EEOC’s guidance suggests that employers may require their employees to be vaccinated from COVID-19. As noted above, this should not be taken as blanket permission for mandatory vaccine policies as there are additional state and local laws that may be applicable. Other government entities, such as the Occupational Safety and Health Administration (“OSHA”), have not yet weighed in on their position regarding mandatory COVID-19 vaccine policies. Importantly, the FDA has approved the COVID-19 under its Emergency Use Authorization protocols. Under this type of authorization, the FDA requires that any recipient be given the choice to refuse to take that drug/vaccine.
Employers that require their employees to receive a COVID-19 vaccine should put in a place policies regarding the administration of the COVID-19 vaccine.
4. Prepare your supervisors, managers, and human resources personnel to handle vaccine-exemption requests
As COVID-19 vaccines become more widely available and employers begin to require their employees to be vaccinated, employers should be ready to facilitate accommodation requests. As mentioned above, employers must attempt to accommodate employees who need exemptions due to disability or religious beliefs. Management and HR personnel should be prepared to recognize an accommodation request from an employee who is refusing to receive the COVID-19 vaccine because of a disability or religious belief and must act in accordance with the law. Indeed, the EEOC’s new guidance expressly refers to management personnel when it states: “Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.” Employers should consider appropriate training and messaging to management personnel who interact with the company’s workforce on a regular basis.
Employers should also begin to consider what potential accommodations may be available to employees who require an exemption from vaccination. Employers have an obligation to accommodate disabilities and sincerely-held religious beliefs. Therefore, employers need to consider if these vaccine-exempt employees can work without being a direct threat to the rest of the workforce. Under these circumstances, employers should work with these vaccine-exempt employees to consider whether teleworking, having a private office, or other accommodations are available.
5. If a reasonable accommodation is not available to a protected employee, the employer may exempt the employee from the workplace
Just as with any disability, employers have an obligation to engage in the interactive process with employees who claim they cannot receive the COVID-19 vaccine due to a disability or sincerely-held religious belief. The same standard applies as with any disability: the employer must provide the employee with a reasonable accommodation unless it would create an undue hardship. If a reasonable accommodation is not possible, the employer may exclude the employee from the workplace. However, employers should make sure to check with their local and state laws before terminating any employee who cannot receive the COVID-19 vaccine due to a protected characteristic.
Cozen O’Connor’s Labor and Employment department is closely monitoring laws and regulations regarding COVID-19 vaccines and will continue to provide updates as more information becomes available. For specific inquiries regarding COVID-19 vaccination for employees or any other employee-related issue, please reach out to any of our labor and employment attorneys.