Everyone is excited about the recent emergency authorization approval of two vaccines to combat the COVID-19 virus, and hoping that life will be back to normal very soon as a result. However, with this news, employers are confronted with a new dilemma. “Can we mandate that employees get the COVID-19 vaccine?” The definitive answer from the Equal Employment Opportunity Commission (“EEOC”) is yes.
In guidance issued on December 16, 2020, the EEOC affirmed that a vaccine administered by an employer or a third party on their behalf, is not considered a “medical examination” under the Americans with Disabilities Act (“ADA”) and therefore, can be a condition of employment for new and existing employees.
If the purpose of the mandate is to protect the workplace from COVID-19, the employer is not considered to be seeking information about an employee’s impairment or current health status. However, there are limitations if an employee refuses the employer’s request because of religious beliefs or a disability that prevents them taking the vaccine. In these situations, an employer cannot simply terminate the employee. The employer must assess whether an accommodation is appropriate. If there is no reasonable accommodation available, the employer may exclude the employee from the workplace.
Before implementing a COVID-19 vaccine requirement….
Before taking any actions, the employer must first show that an “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.” The EEOC requires employers to conduct an “individualized assessment” utilizing four factors to determine if a direct threat exists. Those factors are: a) the duration of the risk, b) the nature and severity of the potential harm, c) the likelihood that the potential harm will occur, and d) the imminence of the potential harm. Once the employer demonstrates the direct threat, they can exclude the employee from the workplace if there is no reasonable accommodation available for the employee.
What employers should do now
Employers should review their existing policies to ensure alignment with the EEOC guidelines if they wish to implement a COVID-19 vaccination mandate. They should also approach any situation where an employee refuses to be vaccinated on a case by case basis. A one size fits all application can land an employer in trouble with the law. Finally, if an employer is faced with an employee who is not following this mandate, for whatever reason, the employer should utilize their existing processes under the ADA and conduct an individualized assessment using the four factors outlined above before taking adverse employment actions.
What ReedGroup is doing now
ReedGroup will continue to monitor this guidance from the EEOC and keep you informed of any new developments in this area. If you are looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.