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Management Counsel: Law Practice 101
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: J. Chadwick Hatmaker and Kaitlyn E. Hutcherson
Woolf, McClane, Bright, Allen & Carpenter, PLLC
CAN AN EMPLOYER REQUIRE ITS EMPLOYEES TO BE VACCINATED AGAINST COVID-19?
In November 2020, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine. On December 30, 2020, the Tennessee Department of Health published the COVID-19 Vaccination Plan for the State of Tennessee. In accordance with the current distribution plan, distribution of the vaccine will occur in three broad phases, with the first phase focusing on residents and staff of long-term care facilities, inpatient and other high exposure healthcare workers, and certain first responders, among others.1
Individuals not included in one of the phases will receive access to the vaccine subject to availability following Phase 3. While Tennessee has started implementing the phased distribution plan it will likely be several months before the vaccine is available to the general public.
Many people will take the vaccine voluntarily. But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment?
The answer is yes, with some exceptions. On December 16, 2020, the EEOC updated its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws” to include guidance regarding whether or not employers can require employees to receive the COVID-19 vaccine as a condition of employment.2
With respect to the COVID-19 vaccine, the EEOC states that requiring an employee to be vaccinated does not constitute an impermissible medical examination under the Americans with Disabilities Act (“ADA”) and does not implicate the Genetic Information Nondiscrimination Act (“GINA”). Thus, an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs.
If the employee has an ADA disability that prevents the employee from taking the COVID-19 vaccine, the employer must analyze whether the unvaccinated employee poses a “direct threat” to the workplace 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,” where the reasonable accommodation would not create an undue hardship on the employer. For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others? If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation. The employer should conduct an individualized inquiry for each unvaccinated employee to determine if the employee poses a direct threat that cannot be reduced or eliminated with a reasonable accommodation.
In accordance with Title VII of the Civil Rights Act, an employee’s sincerely-held religious belief, practice, or observance may also prevent that employee from taking the vaccine. For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer. The EEOC further states that employers should generally assume that a request for a religious accommodation is based on a sincerely-held belief, but if the employer has an objective basis for questioning the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information.
Although a mandatory vaccination is not a medical exam under the ADA, employers must use caution when asking any pre-vaccination screening questions. Pre-vaccination screening questions may elicit information about an employee’s disability or genetic information and implicate the ADA and/or GINA. Specifically, the EEOC states that if an employer requires an employee to receive the COVID-19 vaccine administered by the employer, the employer must show that any disability-related pre-vaccination screening questions are “job-related and consistent with business necessity.” Pre-vaccination screening does not implicate the ADA or GINA if the vaccination program is voluntary, or if the vaccination is administered by a third party that does not have a contract with the employer, such as a pharmacy or healthcare provider.
Similarly, the EEOC advises employers to proceed with caution when asking employees for proof of vaccination. Simply asking an employee about vaccination status or proof of vaccination is not a disability-related inquiry. But asking additional questions regarding the reasons why an employee is not vaccinated may elicit information about a disability and implicate the ADA. Therefore, such questions must be “job-related and consistent with business necessity.”
While the EEOC guidance provides that employers may mandate COVID-19 vaccinations, employers must understand that they will not be able to require vaccinations for those employees who have an ADA disability or a sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. Employers should also be cautious when asking pre-vaccination screening questions, and should consider making COVID-19 vaccines voluntary or having a third party administer the vaccine to avoid potential ADA or GINA implications.
The rules and regulations on this issue may continue to evolve. Certain industries may ultimately be required to vaccinate employees, such as those employers in the healthcare industry. As a result, before requiring mandatory vaccinations, employers should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.
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2 The Covid-19 Vaccination Plan for the State of Tennessee can be found at https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-coronavirus/ COVID-19_Vaccination_Plan.pdf This publication is available on the EEOC’s website, https://www.eeoc.gov/wysk/ what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeolaws.
