The U.S. Equal Employment Opportunity Commission on Wednesday afternoon issued guidance stating that employers can — with some exceptions — require employees to produce proof that they’ve received the coronavirus vaccination.
The EEOC guidance comes shortly after a new FDA-approved vaccine from Pfizer is rolling out to combat the coronavirus across the U.S., with a second vaccine from Moderna on the fast track to receiving approval. While the first wave of vaccinations will mostly go to health-care professionals and other frontline workers, many employees will ultimately receive the vaccine via their employer-sponsored health plans.
For employers, the vaccine’s availability raises a host of questions about the applicability of various EEO laws, such as the Americans with Disabilities act, GINA and Title VII, including the Pregnancy Discrimination Act.
The EEOC’s publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws,” is designed to help employers answer these questions. For instance, the guidance addresses whether asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is a disability-related inquiry:
“No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related,” according to the publication. “Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
However, the document adds that subsequent employer questions, such as asking why an individual did not receive a vaccination, “may elicit information about a disability and would be subject to the pertinent ADA standard that they may be ‘job-related and consistent with business necessity.’”
“The updated EEOC guidance provides long-awaited clarification for employers contemplating vaccination strategies,” wrote attorney Michael Eckard, a member of Ogletree Deakins’ coronavirus task force, in a Dec. 16 blog post.
“The bottom line is that, according to the guidance, employers may lawfully offer COVID-19 vaccinations to employees on a voluntary or mandatory basis, though mandatory vaccine programs implicate certain restrictions and requirements under the ADA and Title VII,” Eckard said.
The Importance of Thorough Policies
The EEOC guidance certainly provides employers some helpful legal direction, but companies have a number of additional factors to consider as the vaccine rolls out.
For example, “employers should be sure they offer coverage for all available COVID vaccines both through their pharmacy benefit and through their medical benefit, so there is no question that all members have coverage wherever they seek a vaccine,” said Jeff Levin-Scherz, national co-leader of Willis Towers Watson’s health management practice.
“Employers can also communicate about the importance of getting vaccinated once vaccines are available, and influencers such as executives can tell their stories about why they are getting vaccinated.”
Melissa Gonzalez Boyce, JD, legal editor at XpertHR and a former employment law attorney, urges employers to adopt vaccination policies that address reasonable accommodations.
“Any vaccination policy should include a procedure for employees to request a reasonable accommodation on the basis of a disability as provided under the ADA, or a sincerely held religious belief under Title VII of the Civil Rights Act of 1964,” said Gonzalez Boyce. “Each accommodation request is fact-sensitive and must be evaluated on its own merit.
Organizations should also note that the General Duty Clause of the Occupational Safety and Health Act obliges employers to rid the workplace of all known hazards, she added.
“COVID-19 has been recognized as a known hazard, so employers should do what they can to eliminate it from its workplace. This could lend support to an employer’s decision to mandate vaccinations, depending on the nature of their business.”
Employers with a unionized workforce should be aware that a vaccination mandate might be considered a mandatory subject of collective bargaining, which gives rise to a duty to bargain with the union prior to implementing such a policy, Gonzalez Boyce said.
“However, employers should review their existing collective bargaining agreement to see if it provides for a management right to implement this type of decision without having to come to the bargaining table.”
Tough Decisions Ahead
COVID-19’s surge continues.
Kathy Dudley Helms, a managing shareholder with Ogletree Deakins and a member of the firm’s coronavirus task force and health-care practice group, also urges employers to be preparing COVID vaccination policies now.
“While it is likely that many tweaks will have to be made as things move forward, there are issues that can be addressed, and the larger structure can be thought through at this point,” Dudley Helms said.
“First, any employer should be able to articulate a legitimate reason that all employees should be vaccinated (except for any allowed exemptions). We can check off health care; that’s an easy one. But industries such as meatpacking plants and others where social distancing or consistent mask wearing is difficult may be fairly easy to justify as well.”
Even industries that are sparsely populated might be able to justify the vaccination, but companies in these sectors need to be able to articulate the reason, she said.
“This is important, both to support the requirement if questioned, and to be able to educate their workforce. Education is a key component and important in getting employee buy-in. Employee buy-in may be critical now, because the CEO getting the vaccine may not sell employees on getting the vaccine. But peers getting it may help.”
Education efforts should begin early and often, said Dudley Helms.
“Employees need to know where to ask questions and how to address concerns. I am convinced that, once management loses its employees’ trust, it is incredibly difficult to recover. So, transparency and communicating in a way that truly informs employees is critical.”
Companies will also have to figure out how and to what extent they will cover the cost, said Dudley Helms.
“Some employers are considering whether a waiver is necessary. We do not know how these will be received or if they will hold up. That is likely to be determined on a state-by-state basis.”
Finally, with regard to the decision whether to advocate for the vaccine or to require it, Dudley Helms suggests that organizations determine if they are really prepared to terminate an employee who is not compliant and not entitled to an exemption.
“This is really tough in industries where staffing is difficult, and it will strain the system further to lose more employees,” she said. “I once had a situation where a senior vice president of human resources refused to get the flu vaccine. So, if you’re going to terminate the lower-level employee, these key folks will have to be terminated as well. Tough decisions.”
About the Author
Mark McGraw is managing editor of Workspan.