COVID-19 Vaccinations from the Employer Perspective
By Jennifer Ryback
Shareholder at McGuire, Craddock & Strother, P.C.
March 15, 2021
When news broke that the first COVID-19 vaccination was ready to be approved by the Food and Drug Administration, there was uncertainty about whether employers could require employees to be vaccinated. On December 16, 2020, the Equal Employment Opportunity Commission (the “EEOC”) provided guidance on that question and related issues as part of the Q&A it created when the pandemic first began that has now been updated many times in the months since. The EEOC’s guidance is called “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” and can be found at the following website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
I. An Employer May Require Employees to be Vaccinated
Based on the EEOC’s guidance, a private employer may require employees to be vaccinated in order to continue their employment, or at the very least, in order to return to the physical workplace. The EEOC identified two exceptions to this general rule: (1) an employee who indicates that he or she is unable to receive a vaccination because of a disability and (2) an employee who indicates that he or she is unable to receive a vaccination because of a sincerely held religious belief, practice, or observance.
A. Exception for Employee Who is Unable to Receive a Vaccination Because of a Disability
The EEOC’s guidance emphasizes that, under the Americans with Disabilities Act (the “ADA”), an employer may have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” But, the EEOC warns that if a vaccination requirement “screens out or tends to screen out an individual with a disability, 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 reasonable accommodation.’”
To determine whether a “direct threat” exists, an employer should conduct an assessment specific to the individual employee based on the following four factors:
(1) the duration of the risk;
(2) the nature and severity of the potential harm;
(3) the likelihood that the potential harm will occur; and
(4) the imminence of the potential harm.
Even if an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer still cannot terminate that employee or otherwise exclude him or her from the workplace unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the direct threat. Reasonable accommodations may include temporary modification of an employee’s work schedule (if that decreases contact with others), moving the location where an employee performs work (if that provides more social distancing), requiring the employee to wear a mask at all times, or allowing an employee to work remotely.
In its guidance, the EEOC describes identifying reasonable accommodation options that do not constitute an undue hardship (meaning they are not significantly difficult or expensive) as “a flexible, interactive process,” noting that it may be necessary to obtain supporting documentation about the employee’s disability. In determining whether a reasonable accommodation exists, employers may rely on recommendations from the Centers for Disease Control (the “CDC”) and employers should also consult applicable Occupational Safety and Health Administration COVID-specific resources, which are available at: www.osha.gov/SLTC/covid-19/.
Employers should keep in mind that, under the ADA, employers must keep any employee medical information obtained in the course of the vaccination program confidential. It is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting a reasonable accommodation.
B. Exception for Employee Who is Unable to Receive a Vaccination Because of a Sincerely Held Religious Belief, Practice, or Observance
To comply with Title VII of the Civil Rights Act (“Title VII”), once an employee provides notice that a sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship, which is defined under Title VII as having more than a de minimis cost to or burden on the employer.
Because Title VII protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. If, however, an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer can request additional supporting information.
C. Exercise Caution Before Terminating an Employee
The EEOC warns against automatically terminating an employee who is unable to receive a vaccination because of a disability or because of a sincerely held religious belief, practice, or observance even if there is no reasonable accommodation under the ADA or Title VII, respectively. This is because other rights may apply under the EEO laws or other federal, state, and local authorities. As such, it is imperative that employers consult with their legal counsel before making any termination decisions—and ideally, throughout the entire process.
D. If the Employer is Administering the Vaccination, Consider the Impact of Pre-Vaccination Medical Screening Questions
According to the CDC, before administering the vaccination, health care providers should ask certain questions to ensure that there is no medical reason that would prevent the person from receiving the vaccination. To avoid issues related to any pre-vaccination medical screening questions, the safest course of action is for an employer to play no role in the administration of the vaccination and for employees to instead receive the vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider. If, however, the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccination) and asks screening questions, the screening questions may be subject to the ADA standard that they be “job-related and consistent with business necessity.”
E. The Employer May Require Proof that an Employee Has Received a COVID-19 Vaccination
The EEOC’s guidance provides that requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability, and therefore, is not a disability-related inquiry and is permissible under the ADA. Employers should be careful that subsequent questions, like why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the ADA standard that they be “job-related and consistent with business necessity.” Employers should warn employees not to provide any medical information as part of their proof of receipt of a COVID-19 vaccination in order to avoid implicating the ADA.
II. Issues to Consider When Determining Whether to Require Employees to be Vaccinated
Outside of whether a mandatory vaccination program is legally permissible under EEO laws, there are a number of other legal and practical considerations to consider in determining whether to implement a mandatory vaccination program.
A. Other Legal Considerations
A mandatory vaccination program may present wage and hour concerns. If a vaccination is required, employers should compensate employees for the time required to get vaccinated. In some states, employers may be required to cover the cost of the vaccination under expense reimbursement laws. And, even if state law does not require the expense to be reimbursed, under federal law and in many states, if the employer does not cover the cost of the vaccination, the employer must ensure that the expense does not reduce the employee’s wages below the applicable minimum wages in a workweek.
While the side effects from the COVID-19 vaccinations are expected to be mostly mild, employers should prepare for the possibility of workers’ compensation liability for an injury, illness, or severe allergic reaction as a result of an employee being vaccinated.
B. Practical Considerations
While the research suggests that a majority of Americans will receive a COVID-19 vaccination when they are able to, employers should consider how best to obtain buy-in from employees who may not be eager to do so and the impact a mandatory vaccination program may have on employee morale, and even, employee retention. Some employers are proactively sharing information to help employees feel comfortable receiving a COVID-19 vaccination and are purposefully scheduling the employer’s leaders to be vaccinated early on in the process to help make other employees feel more comfortable doing so.
Employers should consider whether offering an incentive for employees to be vaccinated would be more effective than a mandatory vaccination program. For example, Dollar General was one of the first to announce that employees who get the COVID-19 vaccination will be rewarded with four hours of pay. In explaining the announcement, the company said, “We do not have an on-site pharmacy and currently do not have systems in place for employees to receive a vaccine at their work site…We do not want our employees to have to choose between receiving a vaccine or coming to work.” Rather than presenting it as a quid pro quo, some employers who are offering an incentive are presenting it as a thank you or reward for employees who are doing all they can (including receiving the vaccination) to get the employer through this difficult time. For example, Houston Methodist is offering its employees a $500 “hope bonus” if they agree to receive a COVID-19 vaccination. Their CEO, Dr. Marc Boom, wrote in a letter to his staff: “This bonus is a thank you for your perseverance throughout a difficult 2020, as well as something to look forward to, to provide hope, during the next couple of challenging months…Eligibility criteria will include getting a COVID-19 vaccination, fulfilling our obligation as health care workers to lead the community.”
Employers who are considering offering an incentive should consult with legal counsel to ensure that the incentive does not create a compliance obligation under the Employment Retirement Income Security Act (“ERISA”) or that the incentive is not considered a wellness program to which the Health Insurance Portability and Accountability Act (“HIPAA”) rules may be applied. The EEOC is also expected to comment soon to provide clarity on whether and how offering incentives for employees to receive a vaccination implicates the Genetic Information Nondiscrimination Act (“GINA”) and the ADA.
Before instituting a mandatory vaccination program or offering incentives to employees who are vaccinated, employers should consider all of the concerns and risks identified in this article and potentially others that have not been addressed (for example, issues related to unionized workforces). Certainly, before instituting a mandatory vaccination program, employers should consult with legal counsel.
For more information, please contact Jennifer Ryback at email@example.com.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions. The information contained herein is current as of the date of this article.