The recent approval of a vaccine brings hope, but also raises a lot of questions for employers. Including whether the vaccinations can be mandatory. What ramifications could result from making it mandatory? Some important issues include workplace safety, OSHA obligations, workers’ compensation, disability, and religious accommodation.
A Summary of Some Potential Issues
Let’s start with new information from the EEOC. It issued guidance on December 16, 2020, addressing some of these issues in a continuation of its COVID-related FAQs. The EEOC first reiterated generally that it does not interfere with or prevent employers from following CDC, other federal, state, and local public health authorities’ guidelines. Within that context, there are issues specific to the vaccination issue.
The EEOC Said The Following
First, an employer does not violate federal law if it requires its employees to receive COVID vaccinations. Employers who administer the vaccinations themselves are cautioned, though. 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. Therefore, they are unlawful unless they meet certain standards.
While not impermissible for an employer to do that, the EEOC noted that they could instead require that the vaccination be done through an independent third party, such as a pharmacy or healthcare provider not affiliated with the employer. Any medical inquiry 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 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 needs to determine whether the employee’s failure to have it presents a “direct threat” to the workplace. This involves a very careful analysis. If it does, then the employee may be excluded from the workplace. Other accommodations 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 their exclusion from the workplace. It is also subject to the accommodation analysis and an assessment of whether other laws come into play.
Last, the EEOC said it will not violate the Genetic Information Nondiscrimination Act (GINA) for employers to require employees to get COVID vaccinations. Even those that use mRNA technology. Unless the administration of the vaccine requires pre-screening questions that ask about genetic information, such as family 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 and the employee develops a reaction 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. How such a policy could apply to employees working remotely who arguably could not pose a threat to the workplace.
There are certainly issues that continue to develop as COVID vaccinations become 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. We will continue to provide updates as more information becomes available.