Last week the EEOC issued long-awaited updated guidance on employer-mandated vaccination programs in the workplace. The EEOC’s guidance suggests that a mandatory workplace vaccination program is lawful under the Americans with Disabilities Act (ADA) and the other laws the EEOC administers provided the employer provides disability and religious exemptions.
The ADA’s “Medical Examination” Limitations
The ADA limits an employer’s ability to make disability-related inquiries or to require medical exams at three stages of employment: pre-job offer, post-job offer and during employment. In question was whether a mandatory vaccination program constitutes a “medical examination” under the ADA. The new guidance confirms the vaccination itself is not a medical examination if it is required to protect the employee from contracting COVID-19. However, screening questions used prior to vaccination my implicate ADA’s rules prohibiting disability-related questions. The EEOC suggests two ways to avoid running afoul of the ADA in this respect: 1) Offer employees the opportunity to take the vaccine on a purely voluntary basis or 2) refer employees to a third party for the vaccine. Both approaches reduce the chances medical information is directly or indirectly conveyed to the employer.
Required Exemptions from Vaccination
If an employer adopts a mandatory vaccination program, it must be prepared to provide exemptions to employees on the basis of disability and sincerely-held religious beliefs. If an employee requests an exemption based on a disability, the employer must determine whether it will create a “direct threat” to allow the unvaccinated employee into the workplace. Direct threat is defined as a significant risk of substantial harm to the employee or others in the workplace. A direct threat is more likely present in certain high-risk workplaces such as a healthcare setting. If an employer determines a direct threat will result from having the unvaccinated employee in the workplace, the employer must then determine whether the risk can be reduced through a reasonable accommodate without creating an undue hardship on the employer’s business.
If an employee requests an exemption based on a religious belief, the employer must determine whether a reasonable accommodation will allow the unvaccinated employee to work on-site without causing undue hardship to the employer’s business. The guidance suggests that employers should assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief unless the employer has an “objective basis” to question the belief. In the case of a religious exemption request, the employer does not have to conduct the “direct threat” analysis that is required in the case of an exemption request based on a disability.
The EEOC guidance states if an employee cannot get vaccinated for COVID-19 because of a disability or because of a sincerely-held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to “exclude” the employee from the workplace. Exclusion does not necessarily mean termination, and the employer should first consider other options such as telework and leave under applicable laws or employer policies.
Best Practices/Takeaways
Employers should:
- Ensure any medical information collected about employees (such as whether an employee has received a vaccination) be kept strictly confidential in a separate employee file.
- Not make any inquires that could reveal an employee’s medical information. For example, if an employer requires immunization proof and an employee hasn’t provided it, asking the employee for an explanation could reveal the employee has a health issue preventing her from getting the vaccine.
- Ensure the availability of personnel qualified and trained to administer and manage accommodation requests.
- Pay non-exempt employees for the time spent getting a mandatory vaccine.
- In certain states, reimburse employees for out-of-pocket costs associated with getting a vaccine.
- Consider providing additional sick leave to employees who experience side effects from the vaccine.
- Conduct a cost-benefit analysis of a mandatory vaccination program. Results of the analysis will vary greatly depending on the employer’s workplace and industry. In some cases, particularly in an office environment, encouraging rather than mandating a vaccine may result in fewer vaccinated employees but will result in cost savings and reduced administrative burdens. Employers in industries experiencing high infection rates may benefit significantly by reducing safety risks through a mandatory vaccination program.
- Consider the current limited supply of the vaccine and ensure the availability of a vaccine before implementing a mandatory vaccination program.
- Understand the EEOC has issued “guidance” on mandatory COVID-19 vaccinations. While very helpful, it is not legislation. Employers adopting mandatory vaccination programs and policies should follow all relevant federal and state laws when establishing and administering the program.
Stay with “Smart” HR
Smart HR has been a “go-to” resource for its clients throughout the COVID-19 pandemic and will continue to provide smart, practical and legally-compliant HR solutions to COVID-19-related issues as we move into 2021. Best wishes from your Smart HR team for a happy holiday and new year!
