The Equal Employment Opportunity Commission has affirmed that employers can mandate COVID-19 vaccines for employees, subject to some limitations.
The EEOC's updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act.
Asking a patient pre-screening questions is a routine part of a vaccination. These questions may constitute a "medical examination" as defined by the ADA. An employer must be able to show that the inquiries are "job related and consistent with business necessity" and that an unvaccinated employee could pose a direct threat to the health of others in the workplace.
The guidance does make clear that administration of a COVID-19 vaccination to an employee itself does not constitute a medical examination for the purposes of the ADA.
Urging employees to get the vaccine voluntarily or requiring them to submit proof that a non-contracted third party (physician, pharmacist or public health center) administered it may be a better alternative with fewer legal complications.
Some employees may be unable to get the vaccine for health or disability reasons. Other employees may have sincere religious objections to getting inoculated. In both cases, employers must make reasonable accommodations for the employees. The law permits them to exclude these employees from the workplace only if no reasonable accommodation is possible.
Employers and employees might not agree on what "reasonable accommodation" means. For this reason, employers should consult with human resources experts and carry employment practices liability insurance. Expert advice will help avoid these kinds of conflicts, and the insurance will pay for legal defense and settlement of resulting employee lawsuits.
Requiring employees to get vaccinated will also have implications for the employer's obligations under state workers' compensation laws. On the positive side, a vaccinated workforce should reduce the employer's exposure to claims that an employee got the virus on the job.
On the negative side, some employees may experience adverse side effects. Since the vaccine would be a job requirement, the employee could make a claim for workers' comp benefits due to the adverse reaction. In addition, the employer may have to pay the worker for the time spent getting vaccinated and for the cost of the injection.
What you can do
Employers can protect themselves by following these guidelines:
- Follow federal and local health guidelines for the vaccine.
- Vary the requirements depending on work conditions and locations, such as requiring vaccines for those who regularly interact with the public but making them optional for remote workers.
- Accommodate employees unable to get the vaccine or resistant to it, to the extent you reasonably can without endangering other employees or the public.
- Apply the requirements consistently to all employees.
No one wants to catch or spread this virus. Employers can help halt the spread by thoughtfully addressing the issue of vaccinating employees. Give us a call if you would like to discuss your options in more detail.