As the first dose of Pfizer’s COVID-19 vaccine was administered in the United States earlier this month and the Moderna vaccine coming this week, people across the country are hopeful that the vaccine will inject a sense of normalcy back into society. However, although health experts such as Dr. Anthony Fauci dub the vaccine’s mass distribution as “light at the end of the tunnel,” many citizens remain hesitant over the vaccine’s emergency-use clearance. Whether people are fearful of the vaccine’s potential side effects, have religious objections, or suffer from medical conditions or disabilities hindering them from taking it, responses to news over the vaccine have undoubtedly generated mixed feelings. A Gallup poll reports 42% of U.S. citizens oppose taking the vaccine.
With vaccine proponents and “anti-vaxxers” at an impasse, what does this mean for employers planning to implement vaccination policies in the workplace? The Equal Employment Opportunity Commission (EEOC) released technical assistance guidance for how employers can navigate federal anti-discrimination laws while requiring employees to be vaccinated against COVID-19.
The EEOC guidance makes abundantly clear that the COVID vaccine is not a “medical examination under the ADA. However, the pre-screening questions health providers should ask before administering the vaccine may elicit information about a disability, and thus, if asked by the employer or an employer’s agent/contractor are “disability related” under the ADA. Thus, to ask such pre-screening questions, the employer would have to show the inquiries are “job-related and consistent with business necessity.” To satisfy this standard, the EEOC guidance provides the employer would need a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and thus does not receive the COVID-19 vaccination) will pose a direct threat to the health or safety of himself/herself or others.
There are two circumstances where disability-related screening questions can be asked without having to satisfy the job-related and consistent with business necessity’ standard:
The EEOC Guidance provides guidance for employers with a mandatory COVID-19 vaccination policy, advising how to respond to a request for a disability and religious accommodation. This guidance restates the ADA provision allowing an employer to have a “qualification standard” that includes a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. If an employee advises their employer they are unable to receive the vaccine because of a disability and the employer wishes to exclude the employee from physically entering the workplace, the employer 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 that cannot be eliminated or reduced by a reasonable accommodation.
Employers should conduct an individualized assessment of the following four factors in determining whether a direct threat exists:
(1) the duration of the risk; (2) the nature and severity of the harm (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. However, an employee with a disability poses a direct threat at the workplace does not allow the employer to automatically exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If the employer is not able to reduce the direct threat to an acceptable level, the employer may exclude the employee from physically entering the workplace, however, this does not automatically allow the employer to terminate the worker. Employers will need to engage in the interactive process to identify workplace accommodations options that do not constitute an undue hardship (significant difficulty or expense). For example, the employer should consider whether the employee’s job can be performed remotely, or whether the employee may be eligible for leave under Family Medical Leave Act. When engaging in the interactive process, employers should determine whether it is necessary to obtain supporting documentation about the employee’s disability and possible accommodation options given the nature of the employer’s workforce and the employee’s position. The prevalence in the workplace of employees who have already been vaccinated and the amount of contact with other others, whose vaccination status could be unknown are additional considerations for considering whether there is an undue hardship to the employer.
Handling a Request for Vaccination Exemption on the Basis of a Religious Belief
Persons with sincerely held religious beliefs, observances, or practices receive protection under Title VII of the Civil Rights Act of 1964. Therefore, once an employee is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the, employer must provide the employee with a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Under Title VII, courts define undue hardship as “more than a minimal burden on the business’s operation.” In other words, it is not an impossible obstacle for employers to overcome an undue burden. For example, businesses can establish that accommodations that are too costly compromise workplace safety or decrease workplace efficiency create an undue burden on their business. Historically, industry sectors requiring employees to interact with others regularly, such as manufacturing, health, and education, have easily defended employees’ challenges over a vaccine policy.
It is important to note that the definition of religion is broad, and protects beliefs, practices, and observances with which the employer may be unfamiliar. An employer should ordinarily assume the employee’s request for religious accommodation is based on a sincerely held religious belief. If the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
To date, over 300,000 American lives have succumbed to the coronavirus. Consequently, vaccine policies can develop into a new norm for business across the nation. While the EEOC guidance is helpful, it also fails to address what is an acceptable level of risk related to the COVID-19 virus, whether employees should be compensated for the time they take to receive the vaccine and whether employers should compensate employees for receiving the vaccine. One thing is certain: it will take a concerted effort from both employers and employees to ensure businesses operate safely in hopes of, one day, putting this virus completely behind us.
Any policies mandating an employee receive the COVID-19 vaccine should be drafted with the assistance of legal counsel. Implementing such policies should also be done with the advice of the employer’s legal counsel.
Joe Benavides, Law Clerk & Lisa Paul, Associate Attorney, J. Cruz and Associates, LLC