The United States Equal Employment Opportunity Commission (“EEOC”) has maintained published guidance on how the COVID-19 pandemic impacts existing US labors laws, particularly the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Acts, (“Title VII”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC’s guidance is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. On May 28, 2021, the EEOC updated and supplemented this guidance with additional information concerning employer vaccination requirements and programs. This Client Advisory will discuss provisions of this guidance most applicable to health care providers.
Vaccination Requirements and Accommodations
The EEOC’s guidance clarifies that federal Equal Employment Opportunity (“EEO”) laws do not prevent an employer from requiring all employees that must physically enter the workplace to be vaccinated for COVID-19. However, such required vaccination would be subject to Title VII, the ADA, and other EEO considerations. Title VII and the ADA require employers to provide reasonable accommodations to employees who do not get a COVID-19 vaccine because of a disability, a sincerely held religious belief, or pregnancy unless the accommodation would pose an undue hardship on the employer’s business. Any vaccination policy put in place must apply and treat all employees the same, unless there is a legitimate, non-discriminatory reason for treating some groups of employees differently under the policy.
If an employee does not get the COVID-19 vaccine because of a disability, a sincerely held religious belief, or pregnancy the employer must provide that employee with reasonable accommodations that allow them to continue working unless there are extenuating circumstances. If an employee cannot meet a vaccination requirement because of a disability, the employer may not require the employee be vaccinated unless the employer can demonstrate the employee would pose a “direct threat” to the health and safety of others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be reduced or eliminated by reasonable accommodation. The employer must first determine if there is a “direct threat” and, if there is, assess whether reasonable accommodations would reduce or eliminate that threat. To determine if the employee poses a “direct threat”, the employer should assess the:
A “direct threat” determination should be based on reasonable medical judgment that relies on the most current medical knowledge about COVID-19. To make such a determination, an employer should evaluate current COVID-19 guidance from the CDC and the work environment of the employee. If an assessment determines that an unvaccinated employee would pose a “direct threat” to self or others, the employer must consider whether providing a reasonable accommodation, as long as there is no present undue hardship, would reduce or eliminate the threat. Under the ADA, an “undue hardship” is anything that imposes significant difficulty or expense upon the employer. Such accommodations may include requiring the employee to wear a mask or work a staggered shift, teleworking, changing the physical layout of the workplace, and/or reassigning the employee.
Title VII requires the employer to provide a reasonable accommodation, unless it would pose an undue hardship, to all individuals who notice the employer that the employee has a sincerely held religious belief that prevents them from getting the COVID-19 vaccine. Such requests should be processed in the same manner as ADA accommodation requests; however, “undue hardship” under Title VII is defined as “having more than minimal cost or burden to the employer”, an easier standard to meet than the ADA standard. An employer should assume that all requests for accommodation based on a sincerely held religious belief are legitimate unless the employer is aware of objective facts that provide a basis for questioning the religious nature or sincerity of the belief. If such objective facts exist, the employer can request additional supporting information. An employer should consult legal counsel before engaging in such an action.
Pregnant employees may also seek exemptions from employer COVID-19 vaccination policies under Title VII. If an employer receives such a request, they need to ensure that the pregnant employee is not being discriminated against compared to other similarly situated employees with similar ability or inability to work. Accordingly, the pregnant employee may be entitled to the same job modifications, work schedule adjustment, and reassignment provided to other employees with similar restrictions.
An employer planning to require COVID-19 vaccination and/or documentation of such should notify all employees that requests for a reasonable accommodation will be considered on an individual basis. All such requests should be evaluated through an interactive process between the employer and employee. Employers need to train managers and supervisors to identify requests for reasonable accommodations and to refer those requests to appropriate personnel. It is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee requesting one. Reasonable accommodation requests from fully vaccinated immunocompromised individuals, or individuals who are otherwise at high risk of severe COVID-19 infection or illness, should be treated the same.
Employer Vaccination Programs
If an employer elects to administer the vaccine to employees, the ADA requires that all pre-vaccination screening questions asked must be “job related and consistent with business necessity” because these questions are likely to elicit information about a disability. If an employer requires an employee be vaccinated by the employer or its agent, the employee may challenge pre-vaccination screening questions, which would need to be justified under the ADA. Appropriate justification would be an employer’s reasonable belief, based on objective evidence, that an employee who does not answer the question and cannot be vaccinated poses a direct threat to the employee or the health or safety of others in the workplace. An employer should avoid asking questions about family medical history in these screening questions.
If an employer provides a voluntary vaccination program to employees, screening questions do not need to be justified under the ADA because the employee can opt not to participate in the program at any time. Any medical or vaccination documentation in the employer’s possession must be kept confidential. An employer can provide an employee an incentive to participate in a voluntary vaccination program as long as the incentive is not large enough to be considered coercive. An employer can offer a vaccination opportunity to the family member of an employee if they take certain steps to comply with GINA but cannot provide the family member an incentive for doing so. All medical information of family members who elect to receive a vaccination from the employer should be kept confidential and should not be provided to any individual who makes employment decisions on behalf of the employer.
EEO laws and the ADA do not prevent employers from requiring employees to provide documentation confirming the employee has been vaccinated if the employer allows the employee to independently seek vaccination. The employer can provide employees incentives to provide this information to the employer. If an employer does require this information, the ADA requires the employer to keep this employee medical information confidential and stored separately from the employee’s personnel file.
Health care providers are in the unique position of acting as an employer and as a vaccination provider. This means that several of the special considerations for employers who provide vaccines to employees are of particular concern to health care providers. Providers should review the guidance and information from the EEOC to ensure that their vaccination policies and procedures are not running afoul of federal labor and disability law.
This client advisory is for general educational purposes and does not cover every provision of the EEOC’s guidance or federal labor and/or disability law. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.