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Although the novel coronavirus, COVID-19, is still rampaging the nation, the end of the horrific pandemic this virus has caused is finally within sight, thanks to the nationwide approval of not one, but two, highly effective vaccines that give recipients immunity to COVID-19.
While the mere approval of these vaccines offered solace to many Americans, it is clear we are not out of the woods yet. The distribution of the approved vaccines has now begun, but uncertainty remains as to how vaccine-eligibility will be determined when those who are eligible will receive their vaccinations, and whether or not the government can require a person to get vaccinated.
In the past month, Federal and state governments have begun issuing guidelines on who needs to receive a COVID-19 vaccine first, and both employers and employees are finding themselves in largely uncharted territory. Employers who have been given the green light to start getting their employees vaccinated have been left to :
1. After a months-long, peer-reviewed study, on December 31, 2020, the New England Journal of Medicine reported that both the Moderna and Pfizer-BioNTech COVID-19 vaccines, on average, provide recipients with 94% to 95% protection from contracting COVID-19. See Fernando P. Polack, M.D., Stephen J. Thomas, M.D., Nicholas Kitchin, M.D. Judith Absalon, M.D., et al., Safety and Efficacy of the BNT162b2 mRNA Covid-19 Vaccine, 383 N ENGL J MED 2020; 2603-15, Dec. 31, 2020 (last accessed Jan. 4, 2021). Wonder if they can require that their employees get vaccinated, and likewise, employees have been left wondering if such requirements are legal and if disobeying such requirements could be grounds for their termination. Luckily, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued a new set of guidelines to answer these and many other vaccine-related employment questions.
2. This latest set of guidance from the EEOC discusses how the newly-available COVID-19 vaccines interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). And as with any other guidelines put forth by the EEOC, this latest set of guidelines carry the force of the law, meaning employers and employees alike are legally bound to adhere to these guidelines, and failing to do so could result in legal liability.
Below, we have set forth the key guidelines the EEOC has just issued in response to current vaccine-related employment questions, and how each guideline will affect employers and employees as the COVID-19 vaccine becomes more widely available.
Can an Employer Require That its Employees Get Vaccinated?
The EEOC’s Answer: Yes, subject to some restrictions.
The EEOC declared that the administration of a COVID-19 vaccine to an employee by an employer (or by a third-party administrator on behalf of the employer) is not a “medical examination” under the ADA. The EEOC explicitly declared that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”
The effect of this declaration essentially grants private employers the right to implement COVID-19 vaccination policies that require employees to be vaccinated as a condition to returning to the physical workplace, or even as a condition to continued employment.
However, the EEOC’s guidance does not give employers carte blanche to vaccinate their employees; the vaccination process must adhere to the requirements and prohibitions of all employment laws. For instance, because administering a COVID-19 vaccine would likely require an employee to provide pre-screening information necessary to determine whether an employee can be vaccinated, the disclosure of that information can trigger a provision of the Americans with Disabilities Act (ADA) prohibiting disability-related inquires, which can expose an employer to liability. Thus, to comply with the ADA, if the employer administers the See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission, Dec. 16, 2020, 3 See id. at K.1. vaccine to its employees, the employer must be able to show that all pre-screening questions asked of its employees are “job-related and consistent with business necessity.”
Can an Employee Opt-Out of an Employer’s Vaccination Requirement?
The EEOC’s Answer: Only for good reason.
Although the EEOC has granted employers the power to mandate COVID-19 vaccinations of its employees, employers must still reasonably accommodate employees who either cannot or will not, be vaccinated for medical or sincerely held religious reasons. The EEOC has declared that in either situation, the employer and employee should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship, as in significant difficulty or expense. This interactive process should include considerations of the possible options for accommodation given the nature of the workforce and the employee’s position and an assessment of whether it is necessary to obtain supporting documentation about the employee’s disability or medical condition.
Ultimately, if an employee is unable to receive a COVID-19 vaccination because of a medical reason or sincerely held religious belief, and their inability to be vaccinated cannot be reasonably accommodated, then it would be lawful for the employer to exclude the employee from the workplace.
However, this does not automatically mean that employers can ban employees from coming to work or terminate them for expressing that they do not wish to be vaccinated. Whether an individual employee could be lawfully terminated for refusing the vaccine would be fact-specific, depending largely on the circumstances of the situation and the specific employee’s essential job functions.
Can an Employer Require an Employee to Show Proof of Vaccination?
The EEOC’s Answer: Yes.
Because the ADA prohibits unnecessary “disability-related inquiries” by employers, many have raised the
question of whether an employer may lawfully request proof that an employee received a COVID-19 vaccination. According to the EEOC, an employer may request or require proof that an employee received a COVID-19 vaccine. The EEOC stated that because “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability,” it is therefore not a disability-related inquiry.
However, the EEOC did note that subsequent employer questions on the same topic, 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 are “job-related and consistent with business necessity.” Consequently, the EEOC recommends that if an employer chooses to require its employees to provide proof that they have received a COVID-19 vaccination, the employer may want to warn the employees not to provide any medical information as part of the proof, to avoid implicating the ADA.
Still, Have Questions? Shalom Law, PLLC Can Help.
The EEOC’s guidelines have helped to answer the most pressing questions on the minds of employers and employees across the nation and in New York, but still, there are new employment law questions and issues that arise daily thanks to the unpredictable nature of this pandemic. So if you are concerned that your place of employment’s vaccination policies and procedures violate the law, we recommend you speak to an experienced Employment Law Attorney immediately. Since the onslaught of the COVID-19 pandemic, our attorneys have been keeping close tabs on all new employment laws and regulations that have been developed in response to COVID-19, and we are here to help you ensure that your rights are protected during this uncertain time. Call Shalom Law today for a consultation: (718) 917-9474.
This memorandum relates to general information only and does not constitute legal advice. Facts and circumstances vary. We make no undertaking to advise recipients of any legal changes or developments.
