Now that COVID-19 vaccines are becoming widely available, we are working with many of our clients on how best to require or at least encourage employees to get vaccinated. Below are three mistakes that we see some employers making in this area, any of which could lead to potential liability under the Americans with Disabilities Act and similar state laws.
- Mandating that employees get the vaccine without recognizing exceptions for health conditions and religious beliefs. The EEOC has made clear that while employers can generally require employees to get vaccinated as a condition of employment, employers should make exceptions for employees who (a) request an accommodation from the vaccine requirement because of a disability or pregnancy, or (b) request to be exempt because of a sincerely held religious belief. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (questions K.1 through K.9). Requests for exemptions would necessitate an individualized analysis of the risks posed by a particular employee and the employer’s ability to accommodate the request without creating a direct threat or an undue hardship. Employers must take care to provide an avenue for employees to raise these types of concerns and then consider them on an individualized basis, consistent with the ADA’s interactive dialogue and related requirements for considering requests for accommodation.
- Participating in administering a vaccine without recognizing that doing so would require the employer to determine that pre-vaccine medical inquiries are “job related and consistent with business necessity.” Most employers that require the vaccine are simply obligating employees to obtain the vaccine from a third-party provider, without the employer’s involvement. But according to the EEOC, if the employer itself or a third party with whom the employer contracts were to assist in the administration of the vaccine and pose pre-vaccine screening questions to employees, such questions would be considered disability-related inquiries, and would have to be “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 and safety or her or himself or others.” See Guidance, question K.2. Generally, a “direct threat” is 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,” such as a remote working arrangement. To make this showing, the employer would likely to have to show that short of requiring the vaccine, there are no other reasonable methods – such as remote work – to assure that the employee does not pose a threat without posing an undue hardship to the company. To sidestep these fact-intensive and potentially complicated preliminary questions, it appears that many employers considering requiring a vaccine intend to simply require employees to provide proof of vaccination by an unrelated third party.
- Disclosing employees’ vaccination status to persons who do not have a business need to know. While employers are permitted to request and maintain proof of vaccination, or otherwise inquire into an employee’s vaccination status, that information should be treated as a confidential medical record and maintained separate from other employment records pertaining to the employee(s) at issue. The information should be shared only with employees with a business need to know it—and not generally with an employee’s co-workers or others.
The Bottom Line for Employers
The above issues are a just a few of the traps for the unwary when it comes to handling employee COVID-19 vaccinations. Employers should stay abreast of developments in this area and familiarize themselves with the EEOC guidance on this issue, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (see subsections K), and consult experienced employment counsel when in doubt.