Since the beginning of the Covid-19 outbreak, pharmaceutical companies all over the world have been working tirelessly to create a vaccine. According to the CDC, the U.S. Food and Drug Administration has only authorized and recommended the Pfizer-BioNTech vaccine to prevent COVID-19. As of late November, three other vaccines, from Moderna, Janssen, and AstraZeneca, went into Phase 3 testing.
With mass vaccine distribution on the horizon, things are starting to look up. 58% of American adults say they will get the vaccine once it becomes available. But what about those skeptical of the vaccine’s effectiveness? Employers may wonder whether they can require employees to take the vaccine as a condition of employment. As with many similar issues, the answer isn’t black-and-white.
New EEOC Guidance: Workplace COVID-19 Vaccination
On December 17th, the Equal Employment Opportunity Commission issued new guidance regarding workplace COVID-19 vaccinations. Since the beginning of the pandemic, the EEOC has noted that COVID-19 meets the Americans with Disabilities Act’s direct-threat standard. The ADA states that it poses a “significant risk of substantial harm” to those in the workplace. This means the ADA allows some more extensive controls in the workplace—like screening questionnaires and medical testing—than there would be under its typical guidelines.
The EEOC’s guidance addresses an array of questions and concerns from employers, but here are the key takeaways:
- The COVID-19 vaccine is not considered a “medical examination” under the ADA. This means an employer may generally mandate workplace vaccination under federal law as a requirement for returning to, or remaining at, work.
- But an employer must attempt to provide reasonable accommodation to employees who decline to receive the vaccine based on medical disabilities or sincerely held religious beliefs.
- Pre-screening questionnaires and other medical forms given by an employer to an employee in relation to a vaccination may conflict with the ADA’s provision on inquiries related to disability. If such a pre-screening is necessary, the employer must ensure that the questions are job-related and “consistent with business necessity.”
- Title II of the Genetic Information Nondiscrimination Act, which makes it illegal to discriminate against an employee because of genetic information, does not apply when an employer administers the vaccine to employees or requires proof of COVID-19 vaccination. But any questions asked in a pre-screening pertaining to genetic information could violate GINA.
- An employer requiring a COVID-19 vaccination may determine that an employee who cannot receive the vaccine due to a disability or religious belief poses a direct threat in the workplace. The employer cannot exclude that employee from the workplace unless there is no other way to provide reasonable accommodation that would either reduce or eliminate the threat. Reasonable accommodation only persists so far as the employer does not incur “undue hardship”, which is defined as significant difficulty or expense to provide an accommodation.
How Employers can Prepare
With these guidelines in mind, particularly those pertaining to reasonable accommodation, there are a few things for employers to review to determine whether mandatory workplace vaccination is the right move for your company. Here’s what you need to know:
- Consider whether mandatory vaccination is truly necessary in light of other, less invasive practices, like remote work, social distancing, mask usage, and other preventative measures.
- The CDC and other government organizations are actively advocating to implement a vaccination plan for critical workers on the state and local level.
- If vaccination is necessary, employers should determine if it is needed for all employees. It may be possible to relegate it to high-risk departments or locations where the other means of limiting the virus are less viable. Note that employers may need to negotiate the implementation of a mandatory vaccine with unionized employees.
- If employers deem the vaccine necessary, be sure to give employees enough time to submit requests for accommodations or modifications. This may look like additional PPE or transfers to other departments.
- An employer may impose a vaccine deadline based on CDC recommendations. In this case, employers should have a well-trained employee or department assigned to monitor and enforce compliance with vaccination policy. Employers should also clearly define and communicate expectations for employees if they fail to comply.
- Employers should consider whether it is possible to provide the vaccine at little to no cost to employees. It is also helpful to provide convenient on-site vaccination locations.
- Review state workers’-compensation laws and current employer insurance policies. Any negative physiological effects derived from an employer-mandated vaccine could lead to a workers’-compensation claim.
- And as always, be sure to continually monitor federal, state, and local policies, guidelines, and laws for the most recent updates in your area.
As the situation continues to rapidly evolve, employers must keep alert to decide if mandatory workplace COVID-19 vaccination is necessary. If you have any questions surrounding the legality of this topic or other concerns, give us a call!