On Monday December 14, 2020, the first American received a COVID-19 vaccine outside of a clinical trial. While current access to the vaccine is limited to healthcare workers and residents of long-term care facilities, the vaccine is likely to become more widely available in the coming months. As a result, many employers are starting to wonder if they can made the COVID-19 vaccine mandatory for employees. On December 16, 2020, the EEOC released guidance relating to COVID-19 vaccines. Based on this guidance, in some instances, employers can make a COVID-19 vaccine mandatory.
EEOC Guidance Regarding the ADA, GINA, and Title VII and Vaccines
Federal law, including the ADA, has restrictions on when and how much medical information an employer may obtain from an employee. However, the EEOC acknowledged that the current global pandemic could meet the ADA’s “direct threat” standard; meaning, in certain circumstances, someone with COVID-19 could present a direct threat to the health and safety of others. In such cases, employers may implement more broad medical inquires than normally allowed under the ADA and related federal law. In the guidance released last week, the EEOC clearly indicates that the administration of a vaccination is not a medical examination, but “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.”
1. Mandatory Employer-Provided Vaccines
As mentioned above, if an employer requires vaccines, and administers the vaccine (including through a third party with whom the employer contracts to administer a vaccine), the pre-screening questions are likely to produce information about a disability. Therefore, the employer must show that the questions are “job-related and consistent with business necessity.” The EEOC explains that, to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” The EEOC recommends conducting an individualized assessment of the situation to determine, for example, the duration of the risk and how severe the potential harm may be. Through this guidance, the EEOC opened the door to allow some employers to implement mandatory vaccine programs, but such programs may not be appropriate for all types of workforces.
2. Required Proof of a Vaccine
The EEOC clearly stated an employer requesting proof of receipt of a COVID-19 vaccination from employees is not a disability-related inquiry. However, follow-up questions about why an employee was not vaccinated may include information about a disability or a sincerely held religious belief. This would trigger the ADA standard that the follow-up questions be “job-related and consistent with business necessity.” If implementing a program to require employees to show proof of a COVID-19 vaccine, employers should be prepared to address, and possibly accommodate, employees who do not receive the vaccine because of a disability or a sincerely held religious belief. When adopting such a program, the EEOC also recommends employers explain to employees not to include any additional medical information with the documentation the employee received the vaccine.
3. Voluntary Vaccination Programs
If an employer offers a vaccination to employees on a voluntary basis, (i.e. employees choose whether to be vaccinated) pre-screen questions can be asked without ADA concerns. If an employee chooses not to answer the pre-screening questions, the employer may decline to administer the vaccine. Importantly, in such a case, the employer must not retaliate against, intimidate, or threaten the employee for refusing to answer any pre-screening questions.
The Minnesota Human Rights Act (“MHRA”) goes above and beyond the ADA and, unless it is a bona fide occupation qualification, employers cannot require employees to undergo a medical exam. As a result, a medical examination may be permissible under the ADA, but not under the MHRA. Conveniently, the state has not addressed the MHRA in its guidance to employers on COVID-related medical inquires and tests. However, in all cases, when an employer requires an employee to undergo a medical evaluation in order to work, Minnesota law requires that the employer pay the cost of the test or medical examination.
Employers should evaluate their workforce before implementing any type of vaccine-related program (whether voluntary or mandatory). When doing so, employers should consider, among other things, whether employees could work from home, the amount of employee contact with other employees and with the public, and whether the employer’s service is essential to the public. Employers subject to collective bargaining agreements should also evaluate all CBAs to make sure there are no limitations under any applicable agreements.
If a business determines a vaccine program or policy is appropriate for their workforce, they should be prepared to address situations where an employee’s disability or sincerely held religious belief prevents them from receiving the vaccine. In such cases, the employer will need to conduct a case-by-case evaluation to determine if there is any reasonable accommodation that can be made, such as allowing the employee to work remotely.
If you have questions regarding COVID-19 or any other employment-related concerns, please contact Caitlin Andersen (952-921-4619 or firstname.lastname@example.org) or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.