As the world anticipates the introduction of the COVID-19 vaccines, those in the employment and labor law world have eagerly awaited guidance from regulatory bodies regarding an employer’s obligations and abilities pertaining to those vaccines. On December 16, the EEOC rewarded us with its latest guidance on the COVID-19 vaccine, and it favors employers seeking to keep their workplace safe from the spreading virus.
First and foremost, the guidance discusses whether the vaccine is considered a “medical examination” under the ADA, and makes clear that it is not, for purposes of the ADA. It clarifies that a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” This definition goes a long way, especially in states like Minnesota where employers are barred from mandatory medical examinations.
It informs readers, however, that pre-screening vaccination questions may implicate the ADA’s provisions on disability-related inquiries, and that those inquiries must be “job-related and consistent with business necessity.” This standard holds true whether the vaccine is being administered by the employer or by a third-party administrator, unless the vaccines are being offered solely on a voluntary basis. According to the EEOC, asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability related inquiry, and does not violate GINA.
Most importantly, the EEOC has stated that employers may require vaccination of their employers, as the ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” As the Minnesota Department of Human Rights recently posted a link to the EEOC’s guidance, it appears that the State has adopted this guidance as well.
At the same time, the FDA has an obligation to ensure that recipients of the vaccine under an EUA are informed the following:
- That the FDA has authorized the emergency use of the vaccine;
- The known and potential benefits and risks;
- The extent to which such benefits and risks are unknown;
- That they have the option to accept or refuse the vaccine; and
- Any available alternatives to the product.
You can see a sample fact sheet here. This is a requirement for the FDA, rather than employers. The guidance seems clear that employers may require a vaccine if they meet the thresholds of the ADA.
If individuals allege that they cannot receive the vaccine either due to disability or religious restrictions, it is incumbent upon employers to conduct an individualized assessment of the employee’s situation to determine it the 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 eliminated or reduced by reasonable accommodation.” Employers should follow either their disability or religious accommodation process, and should ask for supporting documentation when individuals allege that they cannot receive the vaccination.
If an employer cannot exempt or provide a reasonable accommodation to an employee, the EEOC states that “it would be lawful for the employer to exclude the employee from the workplace.” The EEOC emphasizes that this does not mean an employee may be automatically terminated, as employers need to determine if any other rights apply under other government regulations.
This guidance is incredibly helpful in the fight against the spread of COVID-19 in the workplace. Employers need to be prepared for resistance from their employees when it comes to a requirement that they be vaccinated, and this serves as a great tool for all employers to implement legal policies. In Minnesota, employers always need to be extra careful when it comes to medical exams and inquiries due to the Minnesota Human Rights Act, so make sure you consult with your own attorneys prior to implementing a policy of your own. If you, or your organization need assistance in developing your own workplace policies related to COVID-19, contact the Wiley Law Office, for legal advice that works.