The U.S. Equal Employment Opportunity Commission (EEOC) has added a new section to its FAQs on COVID-19 (coronavirus) to address the degree to which employers can require workers to be vaccinated. The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” addresses considerations under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (specifically accommodation of religious beliefs), and the Genetic Information Nondiscrimination Act (GINA). Key points addressed in the FAQs include:
Mandatory vaccination policies: Once vaccines are available to workers, employers may require proof of vaccination in order to physically enter the workplace. If you choose to require vaccinations, you should instruct workers to ensure the documentation simply verifies their vaccination status but doesn’t reveal any medical information.
Objections due to disability: If an employee objects to the vaccination on the basis of having a disability, you should conduct your normal analysis under the ADA. Determine whether the unvaccinated worker’s presence would pose a direct threat to the health and safety of coworkers or others in the workplace. The EEOC says you should consider “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.” If you determine a direct threat exists, you should evaluate whether any reasonable accommodations would reduce the threat to an acceptable level. If not, then you may exclude the worker from the physical workplace, but you should evaluate other accommodations such as working from home or a temporary leave of absence.
Objections due to religious belief: If an employee says becoming vaccinated would violate their religious beliefs, you must undertake a similar analysis to determine whether you can reasonably accommodate the employee without causing an undue hardship to your organization. Unlike the ADA, which sets a high bar for undue hardship, a religious accommodation poses an undue hardship if it would impose more than minimal extra costs or burdens. (State law may be different, however. For example, in Oregon, the undue hardship standard for religious accommodation is just as high as it is for disability accommodation, i.e., it means the accommodation would cause significant difficulty or expense.)
Genetic information: It’s possible that a health care provider administering the vaccine might ask questions about family medical history, which is considered genetic information under GINA. To ensure that such genetic information doesn’t come into your possession, the safest approach is to direct employees to seek the vaccination from a provider of their choice, rather than for you to make the arrangements for them.
Tips: The COVID-19 vaccinations require two shots, administered several weeks apart, so the vaccination isn’t complete until after the second shot. Your employees may have questions about what’s in the vaccine. According to the CDC, the COVID-19 vaccines use mRNA technology, which teaches the cells to create their own version of the spiky protein found on the surface of the virus, so the cells can develop an immune response. Unlike traditional vaccines with which many people are familiar, these vaccines don’t use the live virus that causes COVID-19. Also, they never actually enter the cells and therefore don’t affect individuals’ DNA.
Even though it will be awhile before most workers will have access to the new vaccines, you may want to start thinking about whether to eventually require vaccinations. You should also prepare for employee questions. They may ask whether they can stop wearing face coverings once they’re vaccinated. At this time, the answer is no. The vaccines are reportedly effective for up to 95% of recipients, but that still leaves 5% who could become infected. The CDC’s vaccine FAQs currently recommend that vaccinated people continue to wear face coverings around others and practice physical distancing. Talk with your Vigilant Law Group employment attorney before finalizing any mandatory vaccination policy.