By Lynne Sousa, Leave Management Compliance Counsel
January 21, 2021
Over the last year, employers have faced complicated challenges around how to provide their products or services while also protecting their employees from potentially contracting COVID-19 in the workplace. Employers made quick decisions to transition their workforce to remote work or reconfigure their workspace for essential employees to limit the pandemic’s spread. With the distribution of COVID-19 vaccines underway, employers face a new challenge – what policies to implement as they move toward a new normal of operations, whether continued virtual, hybrid or fully office-based operations.
A crucial question on many employers’ minds is whether they can institute a policy that requires employees to get a COVID-19 vaccination before returning to the workplace in light of the restrictions in the Americans with Disabilities Act (ADA) regarding medical examinations. The Equal Employment Opportunity Commission (EEOC) addressed this question in guidance issued on December 16, 2020.
Vaccines and health screenings are typically considered medical examinations subject to restrictions under the ADA, but the latest EEOC guidance states that employers can require that employees get the COVID-19 vaccine before returning to the workplace, without triggering ADA restrictions, subject to certain caveats.
According to the guidance, COVID-19 vaccinations are not medical examinations for purposes of the ADA because the purpose of requiring an employee to be vaccinated is to protect the employee from contracting COVID-19, not to learn anything about the employee’s health or disability. However, there are scenarios employers must understand when it comes to implementing a mandatory COVID-19 vaccine policy for their workforce to comply with ADA requirements.
ADA Restrictions to Consider if Requiring the COVID-19 Vaccine
While employers can require their employees to receive the vaccine, there are scenarios in which ADA restrictions may come into play. The EEOC guidance explains that the required vaccination pre-screening questions may trigger the ADA restrictions on disability-related inquiries if the questions are likely to produce information regarding the employee’s health or disability. Because of this potential issue, employers should consider using a third-party vendor with whom the employer does not have a contract, to administer the vaccinations and avoid this issue.
Employers may also consider allowing employees to get the required vaccination independently through their healthcare provider and provide proof of vaccination to the employer. The evidence can take the form of something as simple as a note from their doctor, but employers should ensure that the policy makes it clear that the proof must not include any medical information. Accepting forms with medical information could potentially trigger ADA compliance issues for the employer.
Employers should keep in mind that employees may ask to be exempt from the vaccination requirement as an accommodation under the ADA or a religious accommodation under Title VII of the Civil Rights Act of 1964 (Title VII). According to the EEOC guidance, in those situations, employers must engage in the interactive process to attempt to find a reasonable accommodation that would not be an undue hardship for the employer as they would be required to do in any other situation where an employee requests an accommodation under either statute.
For example, it may be a reasonable accommodation to allow an employee who cannot be vaccinated for medical or religious reasons to continue to work remotely. Another option may be allowing them to work in an area separated from other employees and using precautions that reduce the spread of the virus.
What Happens if Agreement on a Reasonable Accommodation Cannot be Reached?
If the employer and employee cannot agree on an accommodation, then the employer must perform an analysis to determine if the employee would pose a direct threat to co-workers, as defined under the ADA, if they returned to the workplace without receiving a vaccination. The EEOC advises in the guidance that employers look at four factors to determine if a direct threat exists.
Employers must consider:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood of the harm; and
- The imminence of the harm.
For example, the duration of the risk would be driven by how long the employee is in contact with other employees or customers. The answer to this question will differ by job and role. A cashier working in a grocery store, for instance, has regular and direct contact with customers and coworkers while a forklift operator in a warehouse may have significantly less direct contact with other people for shorter periods of time.
If, after considering all four factors in the particular situation, the employer determines that the unvaccinated employee will expose other employees to the COVID-19 virus, then the employer may refuse to allow the employee to enter the workplace. However, the EEOC guidance clearly states that this does not mean the employee should be subject to termination at this point. Instead, the guidance advises employers to review all other applicable federal, state, and local law to determine if the employee has any other rights outside of the ADA context.
When an Employee Has No Basis to Claim an Exemption Under the ADA or Title VII
What if an employee refuses to comply with the vaccination requirement but has no basis to claim an exemption under the ADA or Title VII? If the employee refuses to be vaccinated because of a reason not protected by ADA or Title VII, such as a fear that the vaccine may have harmful side effects, the protections and requirements of the ADA discussed above are not triggered. In that situation, the employer would need to look to other potentially applicable laws to determine how to proceed.
Other Considerations When Planning a Return to the Office
While employers would be wise to begin considering their policies and understanding the legal requirements around such policies, all of the above issues are moot until the vaccines are readily available and accessible to a broader population and spectrum of employees.
Finally, please keep in mind that the above information only looks at the small sliver of issues related to the interaction of the ADA and a mandatory vaccination policy. There are many other issues for employers to explore as they consider taking the next steps towards a new normal of operations.
For example, how will employers determine which employees will be classified as essential and required to return to the workplace and who will be allowed to continue to work remotely? What steps will employers need to take to avoid the potential appearance of discriminatory treatment of employees who disagree with their placement in one group or the other?
I will look at some more of those issues in future blog posts in addition to presenting with my colleague Angie Brown at the virtual DMEC Compliance Conference in March. We will dive deeper into how to handle accommodation requests when considering a return to the workplace, including requests related to the COVID-19 vaccine. You can register for the DMEC compliance conference here.
One thing is for sure, understanding how we need to accommodate employee work requirements and needs has gotten more complicated in a post-COVID world. Are you asking the right question to be ready for that world? If not, we would love to have a conversation on how we are helping insurers and employers each and every day navigate the increasing complexity of the workplace.
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