Keeping employees and customers safe has been employers’ top priority during the pandemic. Unfortunately, every step forward in the effort to thwart COVID-19 seems to bring more questions than answers.
The arrival of the vaccine is a good example of this. If you run a business – we know you have questions.
Megan Mitchell and Ed Cadagin of Arnall Golden Gregory have been kind enough to sit down with us to discuss what employers need to know right now about the COVID-19 vaccine.
The burning question on employers’ minds is: “Can I require my employees to receive the COVID-19 vaccine?” This makes sense because, in addition to keeping employees safe, businesses expect to see a growing demand among the public to interact with companies that have a vaccinated workforce. Employers are legitimately afraid that, if they continue to permit unvaccinated employees to have exposure to other employees or customers, they may be flirting with business and legal risks. On the other hand, most employers have never implemented a mandatory vaccination policy and there are a variety of legal considerations associated with requiring vaccination among employees.
It’s important to remember that the FDA has determined that the currently available COVID-19 vaccines meet the criteria to be distributed to the public under the FDA’s Emergency Use Authorization (“EUA”) procedures. That means these vaccines have not gone through the full approval process. Notably, as part of the EUA, the FDA has made it clear that potential recipients must be informed that they do not have to take the vaccine.
The FDA’s decision to issue that language as part of the EUA process, however, says nothing about what employers can do with respect to their at-will employees who refuse to take the vaccine. And although the EEOC recently issued guidance to employers regarding the COVID-19 vaccine, the EEOC did not expressly state whether employers are barred from mandating vaccination for their employees. Rather, the EEOC encouraged employers to create voluntary vaccine policies and explained that disability and religious accommodations need to be factored in by employers. Accordingly, at this point, employers can mandate vaccination, but there are a host of potential pitfalls associated with doing so.
As explained by the EEOC, employers may have to make exceptions from any mandatory vaccine policy for employees who have disabilities or who object to being vaccinated based on sincerely held religious beliefs. This means that if employees refuse to be vaccinated for either stated reason, employers cannot automatically exclude the employee from the workplace. Instead, employers would then be tasked with assessing whether the employee’s lack of vaccination would pose a direct threat to the workplace and whether there are other reasonable accommodations that could alleviate any threat. Employers need not take all objections to vaccination on an employee’s word and may generally request that the employee provide documentation supporting any exception requests for disability-related or sincerely held religious reasons.
Yes, in the unlikely event that an employer already has a vaccination policy, it would need to update the policy to incorporate guidance from the EEOC and any other responsible state or federal agency. Most employers, however, would need to craft a COVID-19 vaccination policy from scratch, and it would be wise to consult legal counsel when doing so.
The answer to this question depends upon the employee’s stated reason for refusing to get the vaccine. For example, if the employee refuses the vaccine on the basis of a disability, the employer must conduct an individualized assessment to determine whether the unvaccinated employee would pose a direct threat to the health or safety of individuals in the workplace, in compliance with the Americans with Disabilities Act (“ADA”). However, as referenced above, if an employer engages in a good-faith interactive process with the employee and determines that the employee does not have a legally viable reason for refusing the vaccine, it may be able to exclude the employee from the workplace. That does not necessarily mean that the employee can be terminated as a result of their refusal to be vaccinated, and employers should be mindful of potential retaliation or discrimination allegations that could follow an adverse employment action taken as a result of an employee’s refusal to receive the COVID-19 vaccine.
This is a valid concern that has actually been addressed by the EEOC in its recent guidance. As most of us know, health care providers have to ask certain questions before administering a vaccine. The EEOC has explained that if employers provide the COVID-19 vaccine (or contract with a separate company to provide it on their behalf), then the pre-vaccination medical screening questions are subject to certain federal standards for disability-related inquiries under the ADA. For mandatory vaccination programs, this means that the pre-screening questions must be job-related and consistent with business necessity. According to the EEOC, “[t]o meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” The EEOC goes on to note that “a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
Because the ADA standard may be difficult to meet, there is an alternative: if vaccinations are voluntary, or if the employee receives the vaccine from a third party that has not contracted with the employer (e.g., their healthcare provider), then the EEOC has stated that these ADA restrictions do not apply to the screening questions. This clearly suggests that the EEOC is encouraging employers to pursue voluntary vaccination policies instead of mandating vaccinations.
It’s also worth noting that employers may ask employees to provide proof of receipt of a COVID-19 vaccination because that is not a disability-related inquiry under the ADA. The EEOC cautions, however, that follow-up questions such as “why didn’t you receive a vaccination?” could elicit information about a disability and would be subject to the standards we just mentioned above.
In all cases, employers should be careful to maintain the confidentiality of any medical information they receive from employees in connection with a vaccine program. Employers should also be careful to avoid collecting information that would trigger the Genetic Information Nondiscrimination Act (“GINA”), which addresses the use, acquisition, or disclosure of genetic information.
As of right now, the logistical issues related to COVID-19 vaccine administration make it unlikely that most employers will be able to offer the vaccine directly to employees any time soon. Once those challenges are resolved, however, employers should consider providing the COVID-19 vaccine to employees on-site, as it would demonstrate the company’s commitment to a safe workplace and provide convenient and free access to the vaccine. Of course, before doing so, employers should consult federal, state, and local guidance.
As we all know, the COVID-19 vaccine rollout has been a constantly evolving process. As such, we expect current guidance to be revised or supplemented, and employers should make sure that they have up-to-date information at the time of any decision.
To keep informed, employers can access the EEOC’s questions and answers regarding COVID-19 vaccination and the workplace, which are available here. The CDC website is also a critical source of guidance, and employers should also consult the information provided by their state and local departments of public health to receive more information about the COVID-19 vaccine.
Understanding the complexities of these new workplace safety protocols can feel overwhelming, especially as we enter a new year with new goals, demands, and hopes. But with EBI, you are never alone. Our newest solution, Workplace Health & Safety, can help your business operate smoothly and efficiently and keep your visitors and employees safe and healthy.
We can do this together!
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.