April 24, 2021
Here’s What You Need to Know About the COVID-19 Vaccine, the ADA and EEO Laws
The introduction of Covid-19 vaccines is raising new legal issues that employers are grappling with as they consider bringing employees back to physical workspaces. Specifically, employers may have questions regarding whether or not they can require returning employees to take COVID-19 vaccines, and to what extent they can ask employees for proof that they are fully vaccinated without conflicting with the Americans with Disabilities Act (“ADA”).
Does Requiring Proof of Vaccination from Employees Conflict with the ADA?
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance regarding employee-employer issues related to the availability of COVID-19 vaccines. The EEOC guidance clarifies that under federal law, employers may institute mandatory vaccination policies for returning employees. In addition, the guidance explains that employers may ask returning employees for proof of whether or not they have received a COVID-19 vaccination.
May Employers Inquire As To Why An Employee Has Not Been Vaccinated?
When employers’ duties under the ADA regarding disability-related inquires are triggered is a key consideration for employers as they determine if COVID-19 vaccinations are a requirement for employees to return to the workplace. The EEOC’s guidance states that after inquiring into whether an employee is vaccinated certain “subsequent employer questions, such as asking why the individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’” However, the guidance does not address in what circumstances an inquiry into why an employee has not been vaccinated might be job-related and consistent with business necessity. Employers would be wise to not inquire with employees —their co-workers, family members or doctors—regarding why an employee has not received a COVID-19 vaccination to avoid triggering the requirements that inquiries be ‘job-related and consistent with business necessity’ under the ADA.
Employers Should Designate an Internal Contact Person for Unvaccinated Employees to Request a Reasonable Accommodation.
If an employee requests a reasonable accommodation from being vaccinated, the employer should determine whether a reasonable accommodation would excuse the individual from a vaccination requirement.
EEOC guidance states that an employer may only prevent an unvaccinated employee from entering the worksite if the employee poses a “direct threat” at the worksite. Whether an employee poses a “direct threat” means that based on a reasonable medical judgment and the best available objective evidence, the employee’s failure to obtain a vaccination poses a significant risk of substantial harm to the health and safety of the individual or others.
Further, the guidance states that to keep the employee away from the worksite, the risk must not be capable of elimination or reduction by reasonable accommodation, such as by allowing the worker to work from home. Given the fact specific nature of each request for a reasonable accommodation, the employer should designate an internal contact person for unvaccinated employees to request a reasonable accommodation.
Questions? If you have questions regarding mandatory employee vaccination requirements and the intersection of EEOC Guidance with the ADA contact us today. We can advise you on steps to take to help protect your business and mitigate risk.