By Karla Grossenbacher and Gerald L. Maatman, Jr.
Seyfarth Synopsis: On December 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance for employers on the interplay of workplace bias laws and COVID-19 vaccinations. As all employers are facing these issues in the coming weeks with the roll-out of vaccinations, the EEOC’s guidance should be required reading for all businesses.
In an effort to be responsive to the need of employers to have clear guidance on the extent to which they can mandate the COVID-19 vaccine under the Americans With Disabilities Act and Title VII in the wake of Emergency Use Authorization for the Pfizer/BioNTech vaccine, the EEOC updated its Technical Assistance guide “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” on the subject of vaccines. In this respect, the Commission acted quickly in terms of its responsiveness to the employer community that had publicly challenged the EEOC to detail this guidance in the fast-changing COVID-19 world this past month.
Essentially, the EEOC has said all employers can require mandatory vaccines as long the employer: (i) allows employees to receive the vaccine from a third party that does not have a contract with the employer, and (ii) follows accommodation requirements under the ADA and Title VII.
The Revised Guidelines
The main legal restriction on requiring employees to be vaccinated comes from the ADA, which contains strict restrictions on an employer’s ability to require employees to undergo a medical examination and make disability-related inquiries. Today, the EEOC stated in its revised guidance that a vaccine is not a medical examination and that asking employees about whether or not they have been vaccinated is not a disability-related inquiry. (On the latter point, at least one federal court has arguably held to the contrary, holding that inquiring about whether an employee is immune to a disease is a disability-related inquiry.) However, the EEOC also stated that pre-screening questions asked by the employer, or a contractor administering the vaccine at the employer’s request, “may” implicate the ADA’s provision on disability-related inquiries as they are “likely” to elicit information about a disability. Thus, if an employer administers the vaccine, or a contractor does so on its behalf, the employer must show that such pre-screening questions are job-related and consistent with business necessity. In order to do this, an employer must show that an employee who refuses to answer pre-screening questions, and therefore cannot receive the vaccine, will pose a direct threat to the health or safety of him/herself or others.
Notwithstanding the above, the EEOC identified two scenarios in which an employer can ask such pre-screening questions without making a showing that they are job-related and consistent with business necessity. First, if an employer offers vaccination to employees on a voluntary basis and the decision to answer the pre-screening questions is also voluntary, this will not pose an issue under the ADA. The employee can choose not to answer the questions, and the only consequence will be that the employee will not receive the vaccine. Second, if the employer mandates that employees receive a COVID vaccine and an employee receives the vaccine from a third party with whom the employer does not have a contract, the ADA restrictions on disability-related inquiries are not implicated. Given this last point, it is permissible for all employers under the ADA to mandate the COVID vaccine (subject to accommodation requests as described below) as long as the employees receive the vaccine from a third party pharmacy or other medical provider with which the employer does not have a contract.
Reasonable Accommodation Issues Under The ADA
In terms of exceptions for the need to provide a reasonable accommodation, the EEOC reiterated its prior guidance that disability-related and religious objections must be accommodated to the extent required under applicable law. Regarding disability-related objections, the EEOC opined in its guidance 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 reduced by reasonable accommodation.” The EEOC advised that employers should conduct an individualized assessment of four factors in determining whether or not a direct threat exists:
(a) the duration of the risk;
(b) the natured and severity of the potential harm;
(c) the likelihood that the potential harm will occur; and
(d) the imminence of the potential harm.
The EEOC further explained that a determination that an individual presents a direct threat would necessarily “include a determination that an unvaccinated individual will expose others to the virus at the worksite.” Even if such a determination is made, the employee cannot be excluded from the workplace or subject to any other action unless there is “no way” to provide a reasonable accommodation absent undue hardship that would eliminate or reduce the risk posed by the unvaccinated employee. Exclusion from the workplace is not the same as termination from employment, as employees may be entitled to telework or take leave provided by law or under the employer’s policies. In addition, employers must still engage in the interactive process regarding disability-related requests for accommodation. In considering whether undue hardship is presented, the EEOC stated that employers should consider the number of employees who have already been vaccinated in its workplace and the amount of contact with unvaccinated individuals in the workplace would occur. Employers may also consider CDC recommendations concerning what might be an effective accommodation and consider OSHA standards and guidance concerning particular job duties and workplaces.
Religious Accommodation Issues
Concerning religious objections, the EEOC opined that, once an employer is on notice that an employee’s 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 under Title VII, which has been defined by courts as more than a de minimus cost or burden on the employer. The EEOC reiterated its prior guidance that employers should normally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer can request documentation. At least one federal court has held that being an “anti-vaxxer” is not a religious belief. If there is no accommodation possible for an employee with a sincerely held religious objection to receiving the vaccine, the employer may exclude the employee from the workplace if it can establish undue hardship under Title VII standards.
Implications For Employers
Today’s guidance effectively provides employers with the authority they have been seeking on whether they can require employees to receive the COVID vaccine before entering the workplace when it is available; they can. Questions still remain about what circumstances might present an undue hardship on a specific employer with regard to a request for accommodation and what might be a reasonable accommodation for a specific employee. Of course, each employer will have to decide whether or not — legal considerations aside — the employer wants to mandate a COVID vaccine for its employees.