The EEOC published long-awaited guidance relating to the Americans with Disabilities Act (“ADA”) and its application to the COVID-19 Vaccine. The guidance is available here. Below are the highlights and key takeaways. Remember the State may also weigh in on this down the road, so as with everything COVID-19 related, stay tuned for updates!
Can I require my employees to take a COVID-19 Vaccine?
Yes—with important considerations, outlined below. The ADA allows employers to terminate an employee, or deem a person ineligible for employment if they pose a “direct threat to the health or safety of individuals in the workplace.” Before adopting a mandatory vaccine policy, employers should conduct an assessment to determine if a “direct threat” is present in the workplace and begin documentation. This procedure will screen out employees or prospective employees if they are unable to receive the vaccine. Because of this, employers must be ready to jump into the interactive process and determine whether accommodation is possible for employees who are unable to take the vaccine or refuse to take the vaccine—as explained more below.
What if my employee says they are unable to get the COVID-19 Vaccine because of a disability?
Bring out the interactive process and reasonable accommodation paperwork! If an employee has a disability as defined by the ADA, and the employer has already determined that a direct threat exists that requires a mandatory COVID-19 policy, the employer must then conduct an individualized assessment based on their unique circumstances to determine whether an accommodation may be provided to the employee.
This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. There may be situations where an accommodation is not possible, but employers should be careful in coming to that conclusion and be sure to look to CDC recommendations for possible avenues of accommodation. This process should be documented and consultation with counsel is recommended.
Can an employee refuse a COVID-19 vaccination because of a sincerely held religious practice or belief?
Again, cue interactive process and reasonable accommodation. When an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting the vaccination, the employer should put on the interactive process hat and determine whether an accommodation may be provided.
As with the disability analysis, employers should be careful in coming to that conclusion and be sure to look to CDC recommendations for possible avenues of accommodation. This process should be documented and consultation with counsel is recommended.
Can I ask to see proof of receipt of a COVID-19 vaccination?
Yes. But, if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should warn the employee not to provide any medical information as part of the proof in order to avoid ADA implications (meaning, you don’t want to go fishing for other employee medical information here).
Can an employer provide and administer the COVID-19 vaccine if it is available or could this be a “medical examination”?
The ADA prohibits medical examinations except in narrow circumstances where the examination is “job related” and a “business necessity.” The EEOC says that just administering (through a third party, for example) the COVID-19 vaccine is not an ADA “medical examination.” HOWEVER, employers should be cautious about the pre-screening vaccination questions. These questions may elicit information about an employee’s disability. If an employer decides to administer the vaccine, it should be careful to set up a protocol and work with counsel to navigate the legal framework in play.
If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions. This may be a great work-around option, if possible.
Who is paying for what?
Remember that just this year, the California Supreme Court took an extremely expansive view on what constitutes “hours worked” and therefore compensable time. You can read about that case here. If your company adopts a “mandatory” vaccine, the time spent getting vaccinated may be compensable—consult with your counsel on the specifics of your program for an analysis. Many factors are in play, including whether the employer is requiring the vaccine, where the vaccination is completed, and the employer’s level of control over the process.
Employers may also bear the cost of paying for the vaccine itself if the vaccine is required.
What about liability for the vaccine itself?
Employers should consider there may be liability if employees have reactions to mandated vaccines. This will certainly be an issue litigated in court after the fact, and may be included as part of a workers’ compensation claim. Legislation on this issue may even come down from the Federal or State level.