Every day we are closer and closer to a vaccine release for COVID-19. As this day quickly approaches, employers have many considerations in developing policies regarding vaccination. For example, employers must consider whether or not to require vaccination of their employees and, if not, will there be other requirements? There has been no similar situation in recent history, and the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Centers for Disease Control and Prevention (CDC) have yet to issue any guidance on mandatory COVID-19 vaccinations. While it is tempting to look to flu vaccination rules for guidance concerning COVID-19 vaccination, the two are drastically dissimilar.
Mandatory vs. Recommended
The EEOC previously issued guidance regarding flu vaccinations stating that employers may not mandate vaccines without giving consideration to accommodations under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). For example, if an employee requests an accommodation under the ADA, the employer must evaluate that request for accommodation before requiring that employee to get vaccinated. This evaluation process also applies to an employee who requests an accommodation due to the employee’s sincerely held religious beliefs. In addition, employers must consider that the ADA regards vaccinations as an examination that must be “job-related and consistent with business necessity or it’s necessitated by a direct threat.” The CDC and the EEOC have both determined that COVID-19 meets the definition of a “direct threat” and employers have relied on that definition in developing policies to keep the work environment safe through more in-depth health-related questions and performing medical screenings of employees prior to reporting for work. Notably, there has not been any guidance on how mandatory vaccination policies will be viewed in light of the COVID-19 pandemic.
Employers must also consider that when the vaccine is released it will not be generally available. Initially, the vaccine will be available for “emergency use authorization” meaning that the Food and Drug Administration (FDA) has allowed unapproved medical products to be used in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by COVID-19 because there are no adequate, approved and available alternatives. This means that the vaccines have not received full FDA approval, but have been approved for use given the current pandemic circumstances. Once “emergency use authorization” is approved for a vaccine, the doses will be distributed by each state’s government and will most likely be sent to hospitals and nursing home residents and staff. Distribution will vary from state to state, but general public use will not occur until the FDA fully approves the vaccine.
Employers must begin developing policies now to consider how best to handle accommodation requests in light of a COVID-19 vaccine. In doing so, an employer should give special consideration to the level of necessity of vaccination for its business as that may dictate how a policy is drafted. Moreover, an employer must give consideration to any collective bargaining agreement or employment contract that may be implicated in creating such a policy. Employers must ask themselves what method would work best for their company in order to get everyone back to work in a safe environment, whether that is a mandatory policy or an incentive policy. For example, an employer utilizing mostly remote workers may not have a mandatory policy, while a retail employer who relies on close, in-person contact may want to require vaccinations. Additionally, if the employer requires the vaccine, then the employer should give special consideration to covering the costs associated with the vaccine. While there is currently no EEOC guidance on a COVID-19 vaccination, should an employer decide that a vaccine is required, then it will be important to carve out exceptions to accommodate individuals pursuant to the ADA and Title VII.
Reviewing Accommodation Requests
Currently, all vaccination policies must contain exceptions for individuals protected under the ADA and Title VII. This includes accommodations for disabilities and religious beliefs. Individual state laws also must be considered, although these are beyond the scope of this alert.
Under the ADA, an employer can require an employee who seeks an accommodation to provide a health care provider certification confirming that the employee has a disability and describing the restrictions imposed on the employee’s ability to perform the essential functions of their job. Additionally, the employer can request the nature of the limitation or disability and the difficulty or issue that vaccination would cause. When evaluating ADA accommodation requests, employers should give special attention to the potential side effects from the vaccine once announced.
Under Title VII, an employee may be entitled to a religious accommodation based on a “sincerely held religious belief” unless an accommodation would present an “undue hardship” to the employer. The EEOC recognizes a broad definition of “religion,” which includes not only traditional organized religions but “also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.” An employer may engage in a limited inquiry to ascertain whether the reasoning for seeking an accommodation is based in religion or, for example, a personal preference. If an employee makes a reasonable accommodation request to be exempted from mandatory vaccination, the employer may ask the employee to provide some basic information identifying what it is about the employee’s religious beliefs that conflict with vaccination.
It is important to note that as we move closer toward a release of a vaccine, it is likely that the CDC and EEOC will issue additional guidance for employers. In the meantime, employers should identify the implications of ADA and Title VII and develop thorough policies and guidelines that they plan on implementing when a vaccination is made available.
If you have any questions regarding the issues raised herein, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.