On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated the frequently asked questions (FAQs) to its existing guidance on how employers should comply with the Americans with Disabilities Act (ADA) and other fair employment laws. The updated FAQs also make reference to all applicable emergency workplace safety guidelines in place during the coronavirus (COVID-19) pandemic. The updated guidance addresses the restrictions that federal fair employment laws place on mandatory workplace vaccination programs.
In general, employers may require employees to receive COVID-19 vaccinations under the condition that they provide reasonable accommodations for employees who refuse to take the vaccine for medical or religious reasons. Furthermore, the EEOC has said employers can require mandatory vaccines as long the employer allows employees to receive the vaccine from a third party that does not have a contract with the employer and follows accommodation requirements under the ADA and Title VII.
The key legal restriction on requiring employees to be vaccinated comes from the ADA, which puts strict limitations on an employer’s ability to require employees to undergo a medical examination and make disability-related inquiries. The revised FAQs from the EEOC state that a vaccine is not a medical examination and that asking employees about whether they have been vaccinated is not a disability-related inquiry.
However, the EEOC also stated that pre-screening questions asked by the employer or a third-party administering the vaccine at the employer’s request “may” implicate the ADA’s provision on disability-related inquiries as they are “likely” to elicit information about a disability. Thus, if an employer administers the vaccine or a third-party does so on its behalf, the employer must show that such pre-screening questions are job related and consistent with business necessity. Therefore, an employer must show that an employee who refuses to answer pre-screening questions and consequently cannot receive the vaccine will pose a direct threat to the health or safety of him/herself or others in the workplace.
The EEOC identified two situations in which an employer can ask such pre-screening questions without proving they are job related and consistent with business necessity. In the first example, if an employer offers the COVID vaccine to employees on a voluntary basis and the decision to answer the pre-screening questions is also voluntary, this will not pose an issue under the ADA. The employee can choose not to answer the questions, and the only consequence will be that the employee will not receive the vaccine. In the second example, if the employer mandates that employees receive a COVID vaccine and an employee receives the vaccine from a third party (with whom the employer does not have a contract), the ADA restrictions on disability-related inquiries do not apply. Given this last point, it is permissible for all employers under the ADA to mandate the COVID vaccine (subject to accommodation requests) as long as the employees receive the vaccine from a third-party vendor or other medical provider with which the employer does not have a contract.
In terms of reasonable accommodation exceptions, the EEOC restated its prior guidance that disability-related and religious objections must be accommodated to the extent required under applicable law. Concerning disability-related objections, the EEOC stated that if 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 reduced by reasonable accommodation.” Employers are advised to conduct an individualized assessment of the following four factors to determine whether or not 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.
Public Perception of the COVID-19 Vaccine
Through the Kaiser Family Foundation (KFF) COVID-19 Vaccine Monitor, a new KFF survey finds an increase in the share of the public saying they would definitely or probably get a vaccine for COVID-19 if it was determined to be safe by scientists and available for free to everyone who wanted it. As of December 2020, this number now stands at 71%, up from 63% in a September survey.
However, about a quarter (27%) of the public remains hesitant about the vaccine, saying they probably or definitely would not get a COVID-19 vaccine even if it were available for free and deemed safe by scientists. Among those who are hesitant to get a COVID-19 vaccine, the main reasons are worries about possible side effects (59% cite this as a major reason), lack of trust in the government to ensure vaccine safety and effectiveness (55%), concerns that the vaccine is too new (53%) and concerns over the role of politics in the development process (51%).
Implications for Employers
The updated guidance provides employers with the authority to require employees to receive the COVID vaccine before entering the workplace when it is available. However, questions still remain about what circumstances might present an undue hardship on a specific employer pertaining to a request for accommodation and what might be a reasonable accommodation for a specific employee. For example, would the following be considered reasonable accommodation for an employee who has made such a request: working remotely, working in a separate part of the building, wearing a mask, etc. The EEOC doesn’t make this completely clear. Unquestionably, each employer will have to decide—legal considerations aside—whether it wants to mandate a COVID vaccine for its employees.
If you have questions about your employee benefits, including compliance with ADA, contact your Hylant service team member or reach out to us here.
The above information does not constitute advice. Always contact your employee benefits broker or trusted adviser for insurance-related questions.