April 15, 2021 Articles

COVID-19: An Employer’s Role in Vaccination

It is advisable for employers to communicate with their workforce on their proposed strategy and expectations with respect to vaccinations.

By Margaret R. Kurlinski
Employers face the daunting task of creating safe return-to-work plans.

Employers face the daunting task of creating safe return-to-work plans.

Pexels | Nataliya Vaitkevich

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As cases of the 2019 novel coronavirus (COVID-19) decrease and availability of the COVID-19 vaccine becomes more prevalent, employers face the daunting task of creating safe return-to-work plans. These plans often involve encouraging COVID-19 vaccination and, in some cases, mandating vaccination before employees may return to in-person work.

Employers Can Mandate a COVID-19 Vaccine

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying that employers are lawfully permitted to require employees to be vaccinated before returning to work, subject to several exceptions. U.S. Equal Emp. Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated Dec. 16, 2020).

Disability Considerations

EEOC guidance reiterates an employer’s obligation to accommodate employees who have disabilities that would otherwise interfere with an employee receiving the COVID-19 vaccination. Under these circumstances, an employer may have to exempt such employees from the vaccine mandate. Examples of such disabilities could include a history of allergic reaction to vaccine ingredients, or an employees who are pregnant or nursing and have been advised against vaccination by a doctor.

Notably, the EEOC acknowledged that under these circumstances an employer may deny a disability-related accommodation where there is no available alternative that would alleviate the “direct threat” posed by an unvaccinated employee. Id. A direct threat is one that poses 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.” Id. Employers must conduct an individualized assessment to determine whether a direct threat exists, taking into consideration the following:

  1. The duration of the risk
  2. The nature and severity of the potential harm
  3. The likelihood that the potential harm will occur
  4. The imminence of the potential harm

If such a threat is deemed to exist, the employer may be able to exclude the employee from the workplace but may need to provide an alternative accommodation, such as a remote work arrangement. However, because current guidance from the Centers for Disease Control and Prevention (CDC) recommends the ongoing use of personal protective equipment, health checks, masks, and social distancing, employers may be able to accommodate unvaccinated employees within the workplace. As requirements for masking and distancing are lifted, the “direct threat” assessment will evolve.

Religious Accommodations

Employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy. As with medical accommodations, an employer who knows that a sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer. Notably, having an “anti-vax” belief alone is not sufficient. The belief must be grounded in religion to qualify for protection.

Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

The EEOC sagely advises that managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability or sincerely held religious belief and know to whom the request should be referred for consideration.

Prescreening Questions

The Americans with Disabilities Act (ADA) generally restricts employers’ ability to conduct medical examinations and request medical information from employees. However, the EEOC has specific guidance that clarifies that the COVID-19 vaccination itself is not a medical examination. Employers must use caution, though, as the EEOC also states that an employer’s use of prescreening questions that ask whether the employee has been vaccinated may inadvertently constitute a disability-related inquiry. The guidance notes that employers can avoid any issues regarding disability-related inquiries if they require employees to be vaccinated by their own medical providers or encourage, but do not require, employees to be vaccinated.

Mandatory Vaccination and Paid Time

If vaccination is mandated, federal law requires that employees be paid for the time spent waiting for and receiving the vaccine. Unionized employers may also consider their collective bargaining agreements when establishing a mandatory vaccination policy.

Trend Toward Encouraging but Not Requiring Vaccination

Many employers are currently encouraging but not requiring vaccinations. This is especially the case in jurisdictions where vaccinations are not available to all adults.

A policy of encouragement relieves the employer of the obligation to conduct disability- and religious-related accommodation analyses. Nevertheless, if employers offer incentives to employees to get vaccinated, like additional paid time off, gift cards, etc., accommodations may need to be made for those employees who are not eligible for the incentive due to a disability or religious belief that prevents them from receiving the vaccine.

Notably, an employer can ask or require employees to show proof of receipt of a COVID-19 vaccination. The EEOC has clearly stated that such a request is not a disability-related inquiry subject to the ADA’s restrictions. There are many reasons why employers would seek this information as they plan for return to “normal” business practices, including reinstituting in-person meetings, travel requirements, etc.

In the meantime, such information will also assist employers in addressing quarantine requirements in the case of a workplace exposure. Interim CDC guidance from March 8, 2021, makes clear that vaccinated, asymptomatic employees do not have to quarantine or test after a known exposure.

Planning for a Return to In-Person Work

Whether or not an employer elects to mandate vaccines now, it is advisable for employers to communicate with their workforce on their proposed strategy and expectations with respect to vaccinations. Employers should also keep in mind that they can change their vaccination policy in the future, converting from a nonmandatory policy to a mandatory one if warranted for the particular workforce.

Margaret R. Kurlinski is a shareholder at Godfrey & Kahn, S.C., in Milwaukee, Wisconsin.


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