Labor & Employment Alert: Employer Mandatory Vaccinations Raising Potential ADA and EEO Issues

Today, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance under the caption, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” that specifically addresses anticipated legal issues arising from employers’ mandatory vaccination requirements. Mandatory vaccination policies do not necessarily raise new legal issues for employers – for example, many employers, especially health care providers, institute flu shot requirements each year for their employees. So, the underpinnings of how the law will work in the COVID-19 era are already there.

But, here are some fundamentals:

1. In Ohio, because of the “at will employment” concept, there is no fundamental right for an employee to refuse to comply with a mandatory program.

 

2. The first potential problem the guidance addresses relative to adopting such a protocol is that a problem could arise if the employer decided to take the initiative by sponsoring an onsite vaccination program where the employer itself (or its contractor) provides the vaccine to the employee, rather than telling the employee to submit proof of having been vaccinated. The issue that would arise is that, if, prior to administering the shot, an employee is questioned about medical history, the employer now may unwittingly have access to employee medical information – that factor creates legal problems under ADA law. It seems as if, at least for the present time, the government’s program for vaccine distribution is not likely to even allow for that possibility.

 

3. The EEOC’s position is that it has no objection, per se, to an employer asking an employee for proof that the employee has had the vaccination.

 

4. There is a potential for a problem with respect to an employee who does not come forward with that proof. Asking questions about reasons for the refusal could elicit answers which detail an individual’s disability – which, again, gets the employer unwittingly involved in employee medical information it doesn’t want to have. However, an employer is free to ask an employee if that employee wants to offer an excuse for violating the policy. In that respect, there may be individuals who assert that a disability or a religious belief prevents them from taking the vaccination. In those situations, employers need to be alerted to their obligation to engage in the “reasonable accommodation” process. 

Ultimately, assuming that there is no way for the employee to comply with the vaccination process, the employer must consider two things: (1) is that requirement necessary with respect to the employee’s job duties (e.g., notwithstanding the policy, does this individual happen to work completely alone without contacting anyone else) and/or (2) is there a way the employee can perform essential job duties from home?

The EEOC interprets this issue as follows:

However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

5. With respect to freedom of religion objectors, the EEOC advises: “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Taking that as a given, again, the employer would need to engage in the analysis of whether there is any accommodation reasonably available. In many cases, it may be that considering whether the individual could perform the essential functions offsite is the determining factor.

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