Access to COVID-19 vaccinations is slowly increasing and certainly will bolster employers' ability to safely return more employees to the workplace. If planning to mandate COVID-19 vaccinations, employers should make sure that their vaccination policies comply with employment laws, primarily the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Title VII of the Civil Rights Act also may come into play.
The ADA, GINA and Title VII of the Civil Rights Act apply to private employers with 15 or more employees. The ADA prohibits employers from discriminating against applicants or employees because of disabilities. GINA makes it illegal to discriminate against applicants or employees because of genetic information. Title VII of the Civil Rights Act guards against employment discrimination based on certain specific classes, among them a person's sincerely held religious beliefs.
Recent
guidance from the Equal Employment Opportunity Commission (EEOC) is designed to help employers navigate vaccination issues without running into problems under these employment laws.
The ADA precludes employers from conducting "medical examinations" of employees. The EEOC guidance points out that providing a vaccination is not a medical examination because a vaccine does not seek information about an individual's impairments or current health status, nor is a vaccination requirement on its own improper under GINA.
Employers considering pre-vaccination screenings or mandatory vaccinations of their employees before their return to the workplace will need to take into account that pre-vaccination screening questionnaires conducted by an employer may elicit disability-related information, which violates the ADA's prohibition on disability-related inquiries and GINA's prohibition on attempts to obtain genetic information. In those circumstances, the employer would have to show that such disability-related screening inquiries are "job-related and consistent with business necessity."
However, if the employer is removed from the process and an employee instead receives an employer-required vaccination from a third party, such as a pharmacy or other healthcare provider, the ADA restrictions would not apply to the pre-vaccination medical screening questions because the employer would not be privy to the information. If an employer contracts with a medical services provider to administer vaccinations at the workplace, that still would qualify as an employer-provided vaccination subject to ADA protections.
Mandatory vaccination policies are permitted, subject to certain conditions. Requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, does not count as a disability-related inquiry. However, if an employer questions employees who did not receive vaccinations as to why they have not been vaccinated, that may constitute a disability-related inquiry, which is improper under the ADA. An employer may have a mandatory vaccination policy, but if the vaccination requirement screens out or tends to screen out an individual with a disability, then 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."
An employer’s efforts to offer an accommodation will be key. If an unvaccinated employee with a disability poses a direct threat that cannot be reduced, an employer cannot automatically terminate the employee; rather the employer needs to try to accommodate a request from an employee who seeks to be exempt from the vaccination requirement. This is the same interactive process required of employers as to all disabled employees. In the COVID-19 context, accommodations could include the option to work remotely or take voluntary temporary leave under the Family and Medical Leave Act, the Families First Coronavirus Response Act (if still offered by the employer) or perhaps via employee leave policies already adopted by the employer.
As is the case with all types of employment disability issues, any medical information obtained in the course of a vaccination program must be kept strictly confidential.
Employees may notify their employer that they refuse to get a vaccination based on a sincerely held religious belief or practice. Under Title VII, the employer again is required to try to provide a reasonable accommodation, unless it would pose an undue hardship on the employer. What constitutes a hardship to the employer is less under this analysis. Further, if the employer has an objective basis for questioning the religious nature or the sincerity of the belief, then the employer would be justified in requesting additional supporting information.
If an employee cannot get vaccinated for COVID-19 because of a disability or a sincerely held religious belief or practice, and the employer and employee are unable to identify a reasonable accommodation that is possible, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean the employer should take the more drastic step of outright terminating a worker's employment. Other equal employment rights may still apply. Consultation with an attorney before terminating a person's employment is always a good idea.
For further information on mandatory vaccination policies or employment concerns, please contact one of
Chuhak & Tecson’s Employment attorneys.
Client Alert by Daniel J. Fumagalli (312 855 4330), Principal.
This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.
