By David James and Joe Schmitt
We have reasons to be optimistic that the threat of COVID-19 to our health, our workplaces, and our economy is fading. Chief among those reasons is the deployment of three vaccines.
As vaccine distribution accelerates, however, so do questions from employers about whether they can require employees to be vaccinated.
Employment lawyers feared that the Equal Employment Opportunity Commission (EEOC) would be tone-deaf to the public health crisis. Surprisingly, the EEOC took a flexible view of mandatory vaccinations, with notable caveats.
The Americans with Disabilities Act (ADA), which the EEOC would interpret and enforce as part of the vaccine question, severely limits employers’ use of practices deemed “medical examinations” in the workplace.
The EEOC has concluded, however, that because a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination. The ADA does not restrict employers’ general ability to mandate vaccinations.
Of course, there are notable caveats. First, pre-screening inquiries—questions asked before the vaccine is administered—may implicate the ADA, as they may reveal information about the employee’s health. As a result, if employers engage a third-party health provider to administer vaccinations on site, it is important that management stay distant from that process and instruct the third-party not to share information regarding any of the pre-screening questions. If an employee attempts to receive the vaccination and reports to her manager that she was unable to do so, leadership should not ask why.
In a related matter, employers may require proof of vaccination before allowing employees back on site, but asking follow-up questions of an employee who cannot offer such proof creates a risk that employees may reveal medical information. To that end, employers should instruct employees up front that they should not provide any information to explain their proof or lack of proof of vaccination; it should be a simple yes/no question.
Next, employers should be prepared to accommodate employees who cannot receive a vaccination because of a disability. For example, management should consider whether there are other ways to reduce or eliminate the risk, such as PPE or an isolated work environment. And, if the job can be performed remotely, then working from home almost certainly would be required as a reasonable accommodation.
Even if no accommodation is feasible, it may be prudent to provide a leave of absence, rather than jump to termination, to allow (a) time for more data regarding the risks of partially vaccinated workplaces, and (b) other employees to proceed with their vaccinations, thereby reducing the risk of a workplace spreader event.
Finally, employers should be prepared to undertake a similar accommodation analysis if an employee states that he will not receive the vaccination for religious reasons. While the law only protects a sincerely held religious belief, judicial precedent has dramatically limited employers’—and courts’—abilities to second-guess an alleged conviction.
Thus, as a practical matter, the accommodation analysis should be the same for an individual with a disability and an individual claiming a religious prohibition.
If an employee refuses to receive a vaccination and does not indicate that the refusal is the result of a disability or religious conviction, then employers are free to prohibit returning the employee to on-site work and may consider termination. In exploring this option, a consistent practice will be essential.
For example, if management permits a top performer a leave of absence, and promptly discharges another employee, it opens the door for a variety of wrongful termination claims, such as discrimination or retaliation. When considering whether to mandate vaccinations, it is important to consider whether the organization will be willing and able to follow through with a consistent response to employees who refuse the vaccination without excuse.
Ultimately, the EEOC’s blessing of mandatory vaccination policies is a great development, but traps remain. If you adopt this policy, be sure that you are prepared to provide accommodations and treat those who refuse to vaccinate without a valid excuse consistently.
James and Schmitt are shareholders in the labor-and-employment group at Nilan Johnson Lewis. Association members are entitled to no-cost, 60-minute consultations with them. Call the firm at (612) 305-7500.