The recent approval of a vaccine brings hope, but also raises a lot of questions for employers including whether the vaccinations can be mandatory and what ramifications could result from making it mandatory. Some (but not all) of the important issues include workplace safety/OSHA obligations, workers’ compensation, and disability and religious accommodation. The following is a summary of some potential issues.
Let’s start with new information from the EEOC. It issued a guidance yesterday, December 16, addressing some of these issues in a continuation of its COVID-related FAQ’s. In doing so, the EEOC first reiterated generally that it does not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.
Within that context, though, there are issues specific to the vaccination issue. The EEOC has said the following. First, an employer does not violate federal law if it requires its employees to receive the COVID vaccination. Employers who administer the vaccination themselves are cautioned, though, because the vaccination requires certain medical screening questions. If an employer or someone the employer contracts to administer the vaccination (such as a 10-day provider) asks these questions, they can be considered disability-related inquiries under the ADA and are therefore unlawful unless they meet certain standards. Therefore, while it is not impermissible for an employer to do that, the EEOC noted that an employer could/should instead require that the vaccination be done through an independent third party, such as a pharmacy or health care provider not affiliated with the employer, so that any medical inquiry that needs to be made as part of receiving the vaccination will not be subject to the same limitations.
Second, an employer may require an employee to show proof of the vaccination. However, the employer should also warn the employee not to provide any additional medical information in order to avoid implicating the ADA.
Third, if the employer makes vaccination mandatory, it must account for disabilities that may prevent the employee from having the vaccination. In such cases, the employer would have to determine whether the employee’s failure to have it presents a “direct threat” to the workplace, which involves a very careful analysis; if it does, then the employee may be excluded from the workplace, but other accommodations still need to be considered (such as remote work). Likewise, if an employee objects to the vaccination due to a religious belief, the employer must also engage in the reasonable accommodation process. Once again, an employee’s refusal to be vaccinated for this reason could potentially lead to exclusion of the employee from the workplace, but is also subject to the accommodation analysis as well as an assessment of whether other laws come into play.
Last, the EEOC has said it will not violate the Genetic Information Nondiscrimination Act for employers to require employees to get COVID vaccinations, even those that use mRNA technology, unless administration of the vaccine requires pre-screening questions that ask about genetic information, such as family members’ medical histories.
In addition to the information provided in the EEOC guidance, employers must be aware of several other issues, such as workers’ compensation implications. For instance, if an employer requires the vaccination as a condition of employment, or even strongly recommends it, and the employee develops a reaction or illness because of it, it may be considered a compensable workers’ compensation claim. Likewise, there may be considerations under OSHA’s general duty clause, depending on how the use of the vaccination is interpreted in terms of general workplace safety.
There are many other considerations as well, including employees who object not for religious or medical reasons, but on moral or other grounds, or how such a policy would apply to employees who are working remotely and arguably would not be a threat to the workplace.
These are certainly issues that will continue to develop as the vaccination becomes more readily available. Employers should start thinking now about how they intend to approach the vaccination issue and whether they want to make it mandatory. The analysis is likely to continue to change as guidance under the CDC changes and more is known about the vaccinations and their effect(s). We will continue to provide updates as more information becomes available.