Addressing a coronavirus vaccine in light of federal guidance

By Stephen Scott
BridgeTower Media Newswires
 
PORTLAND, OR — In a few years, employers may hear words like Zoom, lockdown, work from home, “athleisure” or “you’re on mute,” and flash back to 2020. While I never would have been able to anticipate those would be words of 2020, I do anticipate the one word that will define 2021 for employers: vaccine.

In light of the EEOC’s new guidance related to vaccines, I can only imagine it will be a buzzword for employers across the nation. While there are numerous issues to consider before mandating that employees get vaccinated, here are five key takeaways from the EEOC’s first official take on the COVID-19 vaccine.

The EEOC indicates that employers can require their workers to get a COVID-19 vaccine in certain circumstances

The agency’s updated FAQs do not unequivocally state that “employers can require the vaccine.” It is never that simple. However, the EEOC repeatedly answers questions discussing what actions employers can take in response to various circumstances after an employer has mandated the vaccine. This approach plainly suggests there must be circumstances where employers are legally permitted to require vaccine immunization of their workers without violating the Americans with Disabilities Act (ADA), Title VII, and other federal anti-discrimination laws. According to the EEOC, this is true even though the COVID-19 vaccine is currently authorized under the FDA’s Emergency Use Authorization.

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Remote work throws a wrench in a vaccine mandate

The only scenario described by the EEOC as permissible to mandate vaccination under the ADA is when a worker poses a “direct threat” to himself or herself or others by physical presence in the workplace without being immunized. Thus, mandating vaccines is permitted only if workers would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an employee is capable of fully performing his or her current job duties remotely without the potential spread of the virus to co-workers or work-related third parties, it does not appear that an employer can require that the person get vaccinated.

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Employers must consider reasonable accommodations for employees with disabilities

If an individual cannot be vaccinated because of a disability, the employer needs to determine whether it can provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the safety risk. The employer cannot automatically exclude the person from the workplace or take any other negative action against him or her; as always, engage in the interactive process.

The EEOC indicates an employer should engage in a flexible, interactive process with any employee requesting an accommodation to identify options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. Some things that should be considered include the prevalence in the workplace of employees who already have received a COVID-19 vaccination, the amount of involvement with customers, and the rate of vaccination in the community, as well as the amount of contact with others whose vaccination status could be unknown.

When participating in the interactive process, it is important to remember that it is unlawful to disclose that an employee is receiving a reasonable accommodation, just as it is a violation of federal law to retaliate against an employee for requesting an accommodation. Likewise, an employer should not reveal which employees have or have not been vaccinated.

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Employers need to consider reasonable accommodations for employees who are unable to receive the vaccine for religious reasons

The EEOC’s FAQ reminds employers that they must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents them from receiving the vaccination – unless it would pose an undue hardship under Title VII. The definition of “undue hardship” is slightly different in the religious context compared to the disability context, as courts have defined it as simply “having more than a de minimis cost or burden” on an employer.

While employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, they would be justified in requesting additional supporting information if they have an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.

The crux of any follow-up question is the word “objective.” This is a delicate area of the law and employers should not unilaterally contact the employee’s place or worship seeking proof about their level of belief or engage in any conduct that could raise potential discrimination issues. We recommend consulting with an attorney before making such a request to any employees.

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Employers can require employees to show proof that they received a COVID-19 vaccination

Assuming employers can demonstrate that a mandatory vaccine is appropriate and that no accommodation requirements are in play, the EEOC indicates they can require workers to prove they have received the COVID-19 vaccine. The EEOC says that simply requesting proof of receipt of the vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent questions, such as asking why an individual did not receive a vaccination, may get an employer in trouble. To minimize exposure, if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof to avoid implicating the ADA.

Although the EEOC seems to permit mandating vaccinations for employees in certain circumstances, most employers should consider encouraging rather than mandating due to potential related risks. Whether an employer simply encourages or mandates vaccinations, it should be prepared with at least a policy framework and a communications plan as wider availability of the vaccine draws closer.

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Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.