Employers Can Mandate Employees Have the COVID-19 Vaccine…With Restrictions
By SARA H. JODKA
On December 16, 2020, the Equal Opportunity Employment Commission’s (EEOC) issued “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the Guidance). The Guidance does not even specially address the question as to whether employers can mandate employees have the vaccine, rather, the Guidance jumps right in assuming employers already knew they could have mandatory vaccine policies and goes into the limited restrictions as to when an employer may have to pause and engage the employee in interactive discussion regarding the employee’s medical, religious or other reasons for not wanting the vaccine.
Specially, Section K of the guidance discussion “Vaccinations” and provides a handful of helpful Q&As that succinctly guide employers. Here are some highlights:
How should an employer respond to an employee who indicates the employee is unable to receive the vaccine because of a disability?
The ADA allows employers to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” When dealing with a vaccine, which 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 eliminated or reduced by reasonable accommodation.” Employers must then individualized assessment of four factors in determining whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.
How should an employer respond to an employee who indicates the employee is unable to receive the vaccine because of a sincerely held religious practice or belief?
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 for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII. “Undue hardship” under Title VII, means having more than a de minimis cost or burden on the employer. Further, if 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 ADA allows employers to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” When dealing with a vaccine, which 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 eliminated or reduced by reasonable accommodation.” Employers must then individualized assessment of four factors in determining whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.
What should the employer do if it cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of disability or religious belief?
If an employee cannot get vaccinated because of a disability or religious belief and there is no reasonable accommodation possible, then the employer to exclude the employee from the workplace. This does not mean the employee is terminated; it means employers need to review the matter and ensure it is complying with all applicable laws. Some may allow termination. Some may require unpaid leave or other accommodations.