by Kylie S. Piatt and Christine Self
As the new COVID-19 vaccines have been granted Emergency Use Authorization (EUA) and are beginning to be administered across the country, employers are wondering whether they can require employees to get a COVID-19 vaccine in order to return to or remain at work. On December 16, 2020, the EEOC updated its rolling COVID-19 guidance to include provisions related to vaccinations and employees. The full guidance can be found in the EEOC publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The guidance addresses important EEO considerations for employers in determining whether to mandate COVID-19 vaccination of employees.
In short, the EEOC guidance says employers can establish and enforce COVID-19 vaccination policies that mandate employees to receive the vaccine, but certain exceptions may apply. For example, some employees may refuse or decline the vaccine because of a disability or sincerely held religious belief. In those situations, an employer must first attempt to accommodate these employees to allow them to return to or remain in the workplace. Accommodations may include what employers have already put in place to help keep employees safe at work (e.g., face coverings, social distancing, enhanced sanitization). Employers must consider whether the employee can perform the essential functions of the job with or without accommodation and whether an accommodation creates an undue hardship for the employer. Practices put in place during the course of the pandemic may inform this analysis. For example, if an employer has allowed employees to work remotely during the pandemic without interrupting the function of the business, the employer might be precluded from arguing that teleworking creates an undue hardship. Determination of undue hardship may vary from state to state and employers should consult legal counsel to determine what constitutes undue hardship.
In certain circumstances, the employer may deem that having an unvaccinated employee on site would present 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.” 29 C.F.R. 1630.2(r). Employers should work with their legal counsel to review the factors to consider in making this determination. If a direct threat exists, then an employer may exclude an unvaccinated employee from the workplace. However, this does not automatically result in termination of employment. Rather, the employer must consider whether other accommodations are available, like allowing the employee to work remotely or utilize available leave options.
The EEOC guidance discusses workplace anti-discrimination laws, but other statutory requirements must also be considered when determining whether to require vaccination of employees. While vaccines are available under Emergency Use Authorization (EUA), an authority granted to the FDA, they have not yet received full FDA approval. The FDA has prepared a fact sheet that must be provided to vaccine recipients informing them of their right to refuse the vaccine. See FDA Emergency Use Authorization for Vaccines Explained. There may be additional guidance forthcoming from the federal government regarding vaccine mandates in light of the EUA status.
The updated EEOC guidance also warns employers of additional considerations if employers are administering vaccines to employees (or contracting with third parties to administer the vaccine), particularly with regard to medical information that might be elicited during the vaccine procedure. A general rule is that employers should avoid “disability-related inquiries”—where the employer asks an employee questions about how a medical condition may impact the employee’s ability to perform his/her/their job. Engaging in disability-related inquiries or requiring a medical examination of an employee is acceptable only if/when it is “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(B). Per prior EEOC enforcement guidance, these circumstances usually arise when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. In those circumstances, the employer may require additional information about an employee’s medical condition in order to make employment-related decisions. For example, when an employer asks disability-related questions that follow up on an employee’s request for a reasonable accommodation, that inquiry is likely job-related and consistent with business necessity. Otherwise, employers should avoid asking questions that might unintentionally prompt an employee to disclose information about a disability or medical condition.
Employers must keep that general rule in mind if they organize a program to vaccinate their employees. In the updated guidance, the EEOC confirms that administering a vaccine is not considered an impermissible “medical examination” for purposes of the ADA. However, pre-vaccination screening questions would likely lead to employees disclosing information about a disability, resulting in a disability-related inquiry. Thus, when those pre-screening questions are asked by the employer or third-party contractor, such questions must be “job-related and consistent with business necessity.” Per the EEOC, this standard can be met if the employer has a reasonable, objective basis to believe that an employee who does not answer the pre-screening questions (and therefore does not receive the COVID-19 vaccine) poses a direct threat to the employee’s own health or safety or that of others, as previously discussed. Of course, employers need not worry about these pre-screening questions if (1) the employer makes receiving the vaccine voluntary (meaning employees cannot be retaliated against for not answering the pre-screening questions nor receiving the vaccine), or (2) if employees go to a third party that does not have a contract with the employer to obtain a vaccine, like a pharmacy or doctor’s office.
Finally, the EEOC guidance states that asking employees to provide proof they received the COVID-19 vaccination alone is not likely to garner information about an employee’s disability but asking why an employee did not get a COVID-19 vaccine might. Employers should carefully consider what information and documentation they will require employees to provide as proof of receiving the vaccine to avoid potential ADA implications.
As vaccines gain emergency use authorization or approval and are made available, employers should determine the availability of vaccines to their employees and develop policies or procedures that comply with federal and state law. Although the availability of vaccines to individuals may be limited for several months, employers should use this time to make appropriate policy and procedure changes to ensure a safe and healthy workplace for themselves, their employees, and members of the public with whom they interact. Employers should engage the appropriate parties in the development of those policies, including, where applicable, union representation.
Eager to find out more about COVID vaccine guidance? Stay tuned for upcoming webinars presented by Tueth Keeney and do not hesitate to reach out to a Tueth Keeney attorney with particular questions.
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Kylie S. Piatt practices primarily in the areas of education, school litigation, and labor and employment law. She represents school districts throughout Missouri with respect to employment and termination matters, special education, Section 504, student rights, the Missouri Open Meetings Act, and civil rights. Kylie also assists school districts with managing various intellectual property law matters, such as enforcement of copyright and trademark rights and infringement defense. Prior to joining the firm, Kylie worked for a small firm in St. Louis practicing community association law, representing condominium and homeowners association boards. Before attending law school, Kylie taught 7th and 8th grade Communication Arts at Ethel Hedgeman Lyle Academy as a corps members with Teach for America – St. Louis.
Christine Self practices in the areas of education law and employment law. She has developed employment policies and advised public employers on labor matters and laws such as the Freedom of Information Act and the Illinois Open Meetings Act. She has experience with collective bargaining and disciplinary investigations into employee misconduct. As a former public school teacher, she is committed to assisting schools navigate the legal requirements of the education environment so school leaders and educators can provide the best educational opportunities for students.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Tueth Keeney has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri and in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws. Tueth Keeney also represents institutions of higher education. Our Firm is one of only twenty law firms in the nation that have been appointed to act as Select Counsel to represent colleges and universities insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The Firm represents Southern Illinois University at Edwardsville, Southern Illinois University at Carbondale, Illinois College, Murray State University, and Saint Louis University, among others.