By Julie Pace, David Selden, Heidi Nunn-Gilman, & Demetra Makris
Can your company mandate COVID-19 vaccinations to protect employees and customers and try to keep a business open?
The Equal Employment Opportunity Commission (“EEOC”) issued a highly anticipated update to its publication, “What You Should Know About COVID-19 the ADA, the Rehabilitation Act, and Other EEO Laws.” The new guidance addresses whether employers can require employees be vaccinated before returning to work and how such COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act (“GINA”).
Companies May Require Employees to Get a Vaccination, But Must Engage in Interactive Dialogue and Consider Reasonable Accommodations for Employees with a Disability
Under the EEOC Guidance, a company generally may require at-will employees to be vaccinated. Exceptions exist. If employees have a disability or religious objection that they cannot receive the vaccine, the company then would engage in an interactive dialogue and address whether a reasonable accommodation can be implemented that can allow the employee to perform required job duties. Employees still would need to meet performance expectations. If a company issues a mandatory vaccination policy, the company should be flexible to comply with the ADA and Title VII.
Under the ADA, employers may institute a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. If an employer mandates employees to get the COVID-19 vaccination, but an employee cannot do so because of a disability, the employer must determine whether the unvaccinated employee would pose a direct threat to others 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 reasonable accommodation.
Employers must conduct an individualized assessment to determine whether an employee poses a direct threat, including:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
The EEOC provides that if an employer determines after conducting an individualized assessment that an employee who cannot be vaccinated due to a disability does pose a direct threat, the employer cannot exclude the unvaccinated employee from the workplace “unless there is no way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the risk so the unvaccinated employee does not pose a direct threat.” Employers should exercise caution when determining whether to exclude an employee from the workplace and should consult with legal counsel before taking adverse action.
Employers should engage in a flexible, interactive process to identify workplace accommodation options. When determining whether reasonable accommodations can be made, employers and employees should evaluate factors that include, but are not limited to:
- The employee’s job functions;
- Whether there is an alternative job that the employee could do that would make a COVID-19 vaccination less critical; and
- How important it is to the employer’s operations that the employee be vaccinated.
Reasonable accommodations may include remote working, wearing a mask, social distancing, or leaves of absences. Companies generally do not need to lower the required performance or conduct standards.
Reasonable Accommodations May Be Required for Employees with a Religious Objection
After an employer is on notice that an employee has a sincerely held religious belief, practice, or observance that prevents them from receiving a vaccination, the employer then engages in the interactive dialogue to determine if a reasonable accommodation can be implemented unless it would pose an undue hardship under Title VII of the Civil Rights Act.
Under Title VII, undue hardship means having more than a de minimis, or very small, cost or burden on an employer, which is a significantly lower standard than undue hardship under the ADA. The EEOC states that because the definition of religion is broad and employers may not be familiar with an employee’s particular beliefs, practices, and observances, employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, however, the employer may be justified in requesting additional supporting information.
If Reasonable Accommodation is Not Available, Exclusion from the Workplace May be a Last Option
According to the EEOC Guidance, it generally is lawful for employers to exclude employees from the workplace if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible that can work and is acceptable to the employer.
It is important to note, however, that excluding a worker from the workplace does not necessarily mean termination. Employers should determine if there are any other rights that apply under the EEO laws or other federal, state, and local authorities. Again, consult with legal counsel before taking adverse action against employees who refuse to be vaccinated.
Unionized Employers Need to Review the Terms of Collective Bargaining Agreements Before Implementing a Mandatory Vaccination Policy
Employers with a unionized workforce must review the terms of applicable collective bargaining agreements to see if there is a clause that provides the employer with the right to mandate COVID-19 vaccinations with its workers. If there is no specific provision in the collective bargaining agreement that addresses vaccinations, then unionized employers may need to bargain with the union over mandatory vaccinations.
Companies that want to require employees to be vaccinated for COVID-19 can create a new policy that allows reasonable accommodations for individuals with a disability or religious objection that would prevent them from getting the COVID-19 vaccination. Companies are advised to engage in an individualized assessment for employees who state that they cannot receive the vaccine and determine if reasonable accommodations can be made for the employee.
Companies that wish to require employees to be vaccinated for COVID-19 should have their handbooks and policies updated to address mandatory vaccinations while maintaining continued compliance with other laws. It is imperative that employers stay informed with the continued changing guidance provided by government agencies and state laws.
Many employers may choose to not implement a mandatory vaccination policy, and instead choose to let their employees make their own choices and use a positive approach to encourage employees to get vaccinated. This option de-escalates conflict.
Customers may require your employees to be vaccinated before allowing your company’s employees to physically work at the customer’s job sites. Proof of vaccination may be needed to work at such job sites.
Even with a fully vaccinated workforce, during these pandemic times, companies should continue to mandate wearing masks and practicing physical distancing. At-will employees can be let go for violating safety rules. Remember that the current vaccinations require two shots and then after the second vaccination, it does not become effective for several weeks. And, even if vaccinated, the individual can transmit Covid-19 so the safety precautions will continue indefinitely.
For guidance on how to navigate the rapidly evolving EEOC guidance on COVID-19, how to move forward with COVID-19 mandatory vaccination policies, and how to continue navigating these unprecedented times, please contact Julie Pace, David Selden, Heidi Nunn-Gilman, or Demetra Makris for more information.