Q: We’re a midsize employer that has brought our employees back into the workplace. We’re trying to figure out what to do about COVID-19 vaccinations. What are the rules?
A: On December 16, the federal Equal Employment Opportunity Commission specifically addressed mandatory COVID-19 vaccination policies. The EEOC’s guidance states that employers can implement and enforce mandatory COVID-19 vaccination policies with certain exceptions and caveats.
According to the EEOC, employers need to ensure their polices comply with the Americans with Disabilities Act, federal and state anti-discrimination laws (in which religion is a protected category) and any other state or local workplace laws and regulations. Additionally, employers that elect to require vaccinations as a condition of employment need to ensure these requirements are both job-related and a business necessity.
Handling employees who refuse vaccinations
Federal law allows employees to request that they be exempted COVID-19 and other vaccination requirements due to disability/medical reasons or religious-based objections. Employers need to accommodate these employees unless doing so would create an undue hardship for the employer or create a direct threat to others’ safety.
Proactive employer action steps
Employers that mandate COVID-19 vaccinations for employees can start by creating a non-discriminatory policy, along with a procedure for handling medical and religious accommodation exemption requests. Employers additionally need to review their organization’s job descriptions to see whether specific jobs need to include requirements for mandatory vaccination requirements. “It may not be job-related or consistent with business necessity to require COVID-19 vaccinations for employees that work remotely full-time,” says Eric Meyer, a labor and employment partner with law firm FisherBroyles LLP, which works with clients across the nation.
Meyer adds that “your policy needs to clarify that your organization will not consider vaccine exemption requests for positions where mandatory vaccinations are job-related and consistent with business necessity except for employees seeking disability and religious accommodations.” Your policy also needs to outline the consequences for noncompliance.
If an employee requests an exemption, the employer needs to initiate an interactive process with the employee to determine if any accommodations can be made.
Employers may ask employees to provide documentation from his or her health care provider regarding the nature of any impairment(s) and the extent to which the impairment(s) conflicts with the employer’s vaccination requirement. If the employer feels a need to consult with the employee’s health care provider, the employer needs to obtain a written medical release or permission from the employee in advance.
According to Meyer, “Because the bar for establishing a disability under the ADA is quite low, employers would be better served to focus on how to accommodate, if at all possible, the employee.”
Similarly, the employer may ask an employee to provide an explanation of his/her sincerely held religious beliefs and how these beliefs conflict with a vaccination requirement. Generally, an employer should assume an employee’s request for religious accommodation is based on a sincerely held religious belief. If the employer has an objective basis for questioning the religious nature or sincerity of a particular belief, the employer may be justified in seeking additional supporting information.
Direct threat
EEOC guidance outlines what the employer needs to do to evaluate whether an employee’s refusal to be vaccinated constitutes a direct threat to others or the employee him/herself. Employers can do this by assessing the nature, severity and imminence of the potential harm and the likelihood the harm will occur. Employers that determine an individual who cannot be vaccinated due to disability poses a direct threat at the worksite cannot exclude the employee from the workplace unless there is no other way to provide a reasonable accommodation.
Potential accommodations
Meyer recently co-authored a client advisory for FisherBroyles outlining potential accommodations to either a disability or a religion-based exemption to obtaining a COVID-19 vaccine such as: wearing a mask at work even after the majority of employees receive vaccinations; eliminating an employee’s marginal duties that require the employee to present at the worksite or with other employees; continued telecommuting and additional PPE.
After the decision
After the employer makes its decision, it needs to notify the employee in writing whether it approved or denied the employee’s the requested accommodation, and if the employer plans to provide an alternative accommodation. The employer may want to review its decision if the employee’s circumstances or the needs of the business change.
The employer needs to maintain copies of accommodation requests, supporting information and documentation, including denials, in a file separate from the employee’s personnel file, to comply with the ADA’s confidentiality requirements and protect sensitive religious preference information.
Additionally, employers should remind managers and supervisors not to discuss an employee’s accommodation with others. Additionally, it is unlawful to retaliate against an employee who requested an accommodation.
Finally, while employers can require mandatory vaccinations, many have chosen to leave the vaccination decision up to their employees.
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