The U.S. Equal Employment Opportunity Commission (EEOC) released important new guidance regarding the COVID-19 vaccine. Subject to specific limitations under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII) and the Genetic Information Nondiscrimination Act (GINA), the guidance confirms that employers may require employees receive the COVID-19 vaccine before returning to the workplace.
Although employers should review the full text of the guidance, key points include:
It is important to note that employers will need to apply this guidance on a case-by-case basis. Employers should consider updating reopening plans and familiarizing supervisors, managers and human resource departments with the details of the new guidance.
When Can Employers Mandate COVID-19 Vaccinations Before an Employee Returns to the Workplace?
The key analysis is whether the employee would pose “a direct threat that cannot be reduced to an acceptable level.” Importantly, an employer may not automatically terminate an employee who is unable or unwilling to receive the COVID-19 vaccine.
The ADA permits an employer 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.” A “direct threat” means 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.” 29 C.F.R. 1630.2(r). Factors include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm. According to the EEOC, 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.
Accordingly, under the EEOC guidance, if an employer requires vaccinations when they become available, and an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, that employee may be excluded from the workplace:
“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.”
The takeaway is that, subject to these limitations, employers may require employees to be vaccinated. The employer must permit employees to request a reasonable accommodation if they have an ADA disability or a sincerely held religious belief, practice or observance under Title VII that prevents the employee from taking the vaccine. Working remotely may be one such reasonable accommodation.
When an employee raises a disability-related or religious objection to the vaccine, employers should communicate with these employees. Employers are required to implement reasonable accommodations unless these accommodations would create an undue hardship. Under the ADA, an accommodation results in an undue hardship for the employer if it requires significant difficulty or expense. Under Title VII, it is easier for an employer to establish undue hardship for accommodations than under the ADA.
While the EEOC makes clear that neither the ADA nor Title VII prohibit employers from requiring employee COVID-19 vaccinations, employers should review other considerations before implementing such a requirement. For example, vaccinations could be more critical in some workplaces than others depending on the nature of the work environment.
Employers should also consider the availability of the COVID-19 vaccine. Most experts do not expect the vaccine to be widely available until late spring of 2021 at the earliest. Given that the vaccine could remain unavailable for the foreseeable future, employers should weigh the impact of requiring employees to obtain vaccinations before that time.
Earlier in 2020, the EEOC updated previous pandemic guidance issued in response to the 2009 H1N1 pandemic flu outbreak. That guidance indicated the EEOC prefers employers to encourage employees to get the COVID-19 vaccine rather than issuing a mandate.
Distribution of the COVID-19 vaccine is slowly beginning across the country. Employers and business owners have many questions about the legal implications. Although all these questions require a fact-specific analysis, it is critical for employers to start the planning process now.
The implications of the new EEOC guidance for each employer and business owner will be different. Furthermore, as the vaccine becomes more widely available, additional guidance on these and other related questions may be forthcoming from the CDC, EEOC and OSHA.
Employers are encouraged to continue to monitor this situation as it evolves.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.