As we look ahead to what may be in store for 2021, we all seem focused on the prospect of a successful COVID-19 vaccination campaign to spur an economic recovery. News of successful trials and photos of the first shots going into the arms of medical personnel and first responders give us all hope for a broader reopening of the economy as more and more people receive their initial doses of the vaccine. As the vaccine becomes more widely available, and companies consider whether to implement a COVID-19 vaccination program in the workplace, employers should be mindful of the impact of how the COVID-19 vaccination rollout interacts with the legal requirements of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Genetic Information Nondiscrimination Act (“GINA”).
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” with a new section addressing COVID-19 vaccination issues and the workplace, which include topics such as medical pre-screening questions, medical and religious accommodations for those unable to receive vaccinations, and guidance for conducting an ADA “direct threat” analysis. The EEOC’s most recent guidance is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
Here are some important takeaways for employers considering whether to implement a COVID-19 vaccination program either directly through the employer or through a third party:
- The EEOC’s guidance signals that employers may require that their employees take a COVID-19 vaccine, subject to certain legal exceptions;
- If an employee presents with a disability-based exception (i.e., such as a medical certification that the individual is severely allergic to an ingredient in the vaccine) to the COVID-19 vaccination requirement, employers must conduct an individualized assessment (i.e., evaluating the employee’s ability to perform the essential functions of the employee’s job as well as other jobs that are available and for which the employee is otherwise qualified) and engage in discussion with the employee (i.e. an ADA interactive process) to determine if reasonable accommodations exist that would enable the employee to perform the essential functions of the job. The EEOC guidance notes that the ADA permits employers to 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 if this standard would screen out individuals with a disability, the employer must be prepared to show that an unvaccinated employee would pose a “direct threat” to the health and safety of the individual or others in the workplace that cannot be eliminated by a reasonable accommodation. The employer may require documentation to support the employee’s request for an exception due to disability.
- Employees presenting with an exception to the vaccination requirement based on the employee’s sincerely-held religious belief should be afforded reasonable accommodations for such beliefs unless the accommodation would pose an undue hardship to the employer. The employer may require documentation to support the employee’s request for an exception due to religious reasons.
- If no reasonable accommodation exists that enables the employee to perform the essential functions of the job and the employee is unable to receive the COVID-19 vaccination, the EEOC guidance states that the “employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.” Employers should still proceed with caution and analyze whether other federal, state, or local laws apply, if the employee is entitled to some form of leave, or another accommodation, such as telework, is available.
- The EEOC notes that although the administration of the vaccine itself is not a “medical examination” under the ADA, pre-vaccination medical screening questions are subject to the ADA.
- If prescreening questions elicit genetic information, the prescreening may violate the GINA.
- To avoid running afoul of legal issues associated with the prescreening process, the EEOC recommends that employers who want employees to be vaccinated before physically reporting to work to show proof of vaccination rather than administer the vaccination program directly. Proof of a COVID-19 vaccination in itself is not a disability-related inquiry.
Although the latest EEOC guidance provides employers with direction for implementing a mandatory or voluntary COVID-19 vaccination program for their workforce, employers should nonetheless proceed with caution. Carefully consider the purpose and justification for the program, the potential pitfalls with implementing the program, the operational needs of the business, and ensure procedural safeguards are in place so that such a program may be implemented in compliance with the applicable EEO laws. As always, monitor the EEOC guidance documents and heed the advice of federal, state, and local public health officials as the COVID-19 vaccine rollout progresses and reaches broader sections of the population.
PK Law’s Labor and Employment Team will continue to monitor issues affecting employers in the State of Maryland and will provide updates through PK Law’s COVID-19 Resource Page and Monthly HR Tips.
Adam E. Konstas is a Member with PK Law. He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts as well as federal and state administrative agencies on a variety of matters, including employment discrimination claims, employee (and student) discipline, labor relations, and wage/hour claims. Mr. Konstas also advises clients on the design and implementation of policies and procedures regarding employee (and student) relations, employee handbooks, hiring and termination procedures, as well as school system-wide policy issues including the use of online instructional tools and cloud computing, student data privacy, anti-discrimination. Mr. Konstas is well versed in the burgeoning website accessibility area of law and has successfully resolved a number of matters involving website accessibility. He can be reached at 410-339-5786 and firstname.lastname@example.org.