Many employers are asking whether they can require employees to get vaccinated against COVID-19. The answer appears to be a qualified “yes.”
The Equal Employment Opportunities Commission (“EEOC”), the federal agency responsible for enforcing federal employment laws, issued Guidance regarding the ways in which employers’ mandatory COVID-19 vaccination policies implicate employee rights under various federal statutes. The state of California has not passed legislation or issued regulatory guidance to address the issue, but the emerging consensus is that employers, including public employers, may require employees to get vaccinated against COVID-19 with certain exceptions and limitations.
1. Exceptions to a Mandatory COVID-19 Vaccination Policy
The EEOC Guidance notes that individuals with a disability have the right to refuse vaccination on account of their disability under the Americans with Disabilities Act (“ADA”). Additionally, individuals with sincerely-held religious beliefs or practices can also refuse vaccination under Title VII of the Federal Civil Rights Act. These individuals are entitled to reasonable accommodations in the workplace as long as such accommodations do not pose an undue hardship on the employer.
Absent an undue hardship, an individual who is not vaccinated for these reasons cannot be excluded from the workplace unless there is no way to provide a reasonable accommodation. Permitting remote work or modifying job duties could be a reasonable accommodation, but whether a potential accommodation is “reasonable” under the ADA is a very fact-specific analysis that depends on the workplace and the employee’s unique circumstances. For help on finding reasonable accommodations, the Guidance recommends consulting the Job Accommodation Network (“JAN”) website as a resource for different types of accommodations at www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Additionally, under the ADA, employers cannot implement a policy that “screens out or tends to screen out an individual with a disability” unless it can show that the individual has a disability that poses a “significant risk of substantial harm” to the employee or to others. To justify the requirement, employers are required to conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
Also note that the decision to require employee vaccinations could require collective bargaining under California law, either as a negotiable term and condition of employment or as to impacts and effects of a non-negotiable decision.
2. The ADA Imposes Requirements on Employers Regarding the Vaccination Process.
The Guidance notes that, while administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate ADA provisions on disability-related inquiries because the questions could elicit information about a disability. As a result, employers who administer vaccines or require employees to get vaccinated must ensure any vaccination questions are job-related and consistent with business necessity.
Additionally, any medical information that an employer obtains about an employee pursuant to a vaccination policy must remain strictly confidential. This medical information must be kept in the employee’s medical file, separate from the employee’s personnel file. Medical information also includes the fact that an individual has requested, or is receiving, a reasonable accommodation.
If you are considering a policy to mandate COVID-19 vaccines for employees, there are a number of federal and California laws that require attention. In order to navigate the overlapping requirements, please contact our firm for an individualized assessment and recommendation.