Revisiting the COVID-19 Vaccine Requirement
As businesses reopen and return to pre-pandemic conditions, employers have lingering questions related to COVID-19, including concerns about programs requiring or incentivizing the COVID-19 vaccine in the workplace. On May 28, 2021, the EEOC released revised Technical Assistance Questions and Answers to address employer questions regarding COVID-19.
Here are the important takeaways:
- Yes – employers can ask employees if they have received a COVID-19 vaccine. This type of request is not a “disability-related inquiry” under the Americans with Disabilities Act (“ADA”). Employers can also ask for proof that an employee received the COVID-19 vaccine. However, similar to other medical records and information – confirmation or evidence that employees received the COVID-19 vaccine is considered confidential medical information and should be stored in a secure location and not disclosed to others. Follow up questions about why an employee did not receive the vaccine may be considered “disability-related inquiries.”
- Yes – employers can require employees physically entering the workplace to be vaccinated for COVID-19. However, Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination based on “sincerely held” religious beliefs, and the ADA, which prohibits discrimination based on disability, require that employers provide reasonable accommodations to individuals who do not get vaccinated due to their religious beliefs and practices or due to their disabilities.
- What kind of accommodations should employers consider? The EEOC understands that employers should not have to accommodate unvaccinated individuals at the risk of undue hardship on the business. Suggested accommodations include requiring unvaccinated individuals to wear masks or creating a socially distanced work environment. Employers may require them to work a modified shift, telework, or receive regular COVID-19 testing.
- What is an “undue hardship”? The caveat to the accommodation rule is when an employer can demonstrate that providing such an accommodation would pose an undue hardship to the operation of the employer’s business. Employers must assess the risk posed to the workplace by unvaccinated individuals, including the duration of the risk, the nature and severity of the risk, the likelihood of potential harm, and the imminence of the harm. Much of this evaluation will be based on the particular industry or factual situation.
- What about incentivizing COVID-19 vaccines? Employers can educate employees or offer incentives to employees to get vaccinated. For example, the EEOC recognizes that some employees may not be fully educated about the risks and benefits of COVID-19 vaccines. As such, employers can distribute educational materials, such as information from the Centers for Disease Control and Prevention (“CDC”). Other options include providing transportation to vaccination sites.
- Employers can require that employees receive the COVID-19 vaccine from the employer or an agent of the employer or institute a voluntary vaccination program. If the employer requires that employees receive the vaccine from itself or its agent, ADA restrictions apply because, before administering the vaccine, the recipient generally answers questions regarding his medical suitability to receive the vaccine – this is a “medical examination” under the ADA. Thus, such questions must be “job related and consistent with business necessity.” The employer must have a reasonable belief that an employee who does not answer the questions and cannot be vaccinated would pose a direct threat to the employee’s own health or the safety or health of others in the workplace. If an employer has a voluntary vaccination program, these ADA requirements do not apply.
This is simply the “tip of the iceberg” of COVID-19’s impact on the workplace and the EEOC’s guidance concerning vaccines. We will continue to monitor changes in the law related to COVID-19. Employers should reach out to an experienced employment attorney at DiMonte & Lizak, LLC with questions or concerns.