The COVID-19 Vaccines: Practical and Legal Issues for Employers

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Introduction

As of December 21, 2020, the FDA has issued emergency use authorizations for two COVID-19 vaccines. Vaccination is anticipated to be available to the general public beginning in 2021. The impending availability of the vaccines presents unique issues for employers seeking to protect themselves, their employees and the public.

On December 16, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance for employers to include information about vaccination in the workplace. The guidance indicates that employers can require employees to be vaccinated before returning to the physical workplace. But the process for determining which employees can and cannot receive vaccines raises issues related to disclosure of disability-related information. Employers should take care that their vaccination policies and plans are consistent with all applicable laws, including the Americans with Disabilities Act (ADA) and Title VII.

Employers Can Require Vaccination Once Vaccines Are Available

Generally, the ADA prohibits employers from conducting medical examinations on employees.¹ However, the EEOC has determined that a vaccine administered to an employee by an employer for protection against contracting COVID-19 is not a medical examination: "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."²

The ADA allows employers to have qualification standards for work that include "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."³ As a result, employers may require employees to be vaccinated before returning to the physical workplace because COVID-19 presents a direct threat to health and safety. While the EEOC has previously determined that an employee with COVID-19 entering the workplace poses a direct threat under the ADA,⁴ the guidance recommends that employers should "conduct an individualized assessment" of the following factors in determining whether a direct threat exists:

• duration of the risk;
• nature and severity of the potential harm;
• likelihood that the potential harm will occur; and
• imminence of the potential harm.⁵

Given the high transmissibility of COVID-19 and how dangerous the virus can be, it is likely that this standard would be met in most physical workplaces where employees interact with each other and/or the public.

Pre-Vaccination Screening Questions Are Subject To ADA Standards For Disability-Related Inquiries

According to the CDC, health care providers should ask certain questions before administering the COVID-19 vaccine to ensure that there is no medical reason that an individual should not be vaccinated.⁶ Because these questions are likely to elicit information about a disability, if an employer or a contractor working on the employer's behalf asks the questions, they are subject to the ADA standards for disability-related inquiries. This means that the questions must be "job related and consistent with business necessity."⁷ To meet this standard, an employer needs to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and receives the vaccine poses a direct threat to health and safety in the workplace.⁸ As discussed above, it is likely that in most physical workspaces, an employee who has not received the COVID-19 vaccine will pose a direct threat to health and safety, which supports the permissibility of the pre-vaccination screening questions.

One way to avoid this issue altogether would be requiring employees to receive the vaccine from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, and require that the employee provide proof of vaccination. The EEOC guidance states that requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.

In any event, information gathered about an employee's health must be kept separate from their general employment file and treated as a confidential medical record.⁹

Employers Must Attempt To Make Reasonable Accommodations For Employees Who Cannot Be Vaccinated

Some employees may not be able to receive the vaccine for medical reasons, or may object to receiving the vaccine because of a sincerely held religious belief. The ADA requires employers to reasonably accommodate employees' covered disabilities and Title VII requires that employers reasonably accommodate employees' religious beliefs. Both of these requirements are potentially implicated by requiring that employees get the COVID-19 vaccine.

Regarding the latter (which are likely less familiar to employers than traditional, medical accommodation requests), accommodation requests based on a sincerely held religious belief must be taken into account provided the accommodation would not pose an "undue hardship" upon the employer.¹⁰ While the EEOC does allow an employer to require employees to provide proof of the "sincerity" of its employees' alleged religious beliefs in the event the employer has a bona fide doubt regarding either the religious nature or the sincerity of a particular belief/practice, the agency has cautioned that the employer can only make a "limited inquiry," and that employees can make the requisite showing in a variety of means, including a written or oral explanation from the employee or others who are aware of the employee's religious belief.¹¹

If an employee requests an exemption from a mandatory vaccination policy because of a disability or sincerely-held religious belief, the employer should engage in the interactive process to determine whether a reasonable accommodation that does not impose an undue hardship on the employer can be made. The EEOC guidance notes that "the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration."¹² The standard for what constitutes an "undue hardship" differs depending on the type of accommodation requested. For example, an employer can refuse to grant a requested religious accommodation if it can show that the accommodation would impose more than a "de minimis" cost on the business—a significantly lesser showing than required under the ADA's undue hardship analysis.¹³ Regardless, employers are encouraged to consult with counsel before denying any request for accommodation based on an alleged undue hardship.

If an employer cannot exempt or provide a reasonable accommodation to an employee who cannot be vaccinated, the employer may exclude the employee from the workplace.

Employers With Union-Represented Employees Should Consider Bargaining With Their Unions Prior To Implementing Vaccine Policies

Finally, although neither the National Labor Relations Board nor the California Public Employment Relations Board has, to date, issued guidance concerning an employer's bargaining obligations vis-à-vis COVID-19 vaccinations, it is possible that one or both of these Boards could determine that implementation of a mandatory-vaccine policy would impact the terms and conditions of employment so as to constitute a mandatory subject of bargaining. For example, the NLRB has previously held that a hospital's implementation of a flu vaccination policy was a mandatory subject of bargaining under the NLRA.¹⁴ Whether an employer has a duty to bargain may also depend on the provisions of its current collective bargaining agreement. Accordingly, both public and private employers with union-represented employees should review their current labor agreements and determine whether bargaining is required before implementing any vaccine policies. Employers wishing to bargain with their unions are encouraged to begin those discussions sooner rather than later so that any vaccination policies can be put into effect before vaccines become more widely available.

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The full EEOC Guidance on COVID-19 and EEO Laws can be found here.

The COVID-19 vaccine situation is developing rapidly. Preparation by employers at this stage is key to keeping employees and the public safe and avoiding legal missteps when the vaccines become widely available. Please feel free to contact the attorneys listed in this Advisory for further guidance or analysis.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.