DECEMBER 10, 2020 – CHRISTINE GANTT-SORENSON
Vaccines and health screenings are medical examinations under the Americans with Disabilities Act (ADA). An employer requiring a vaccine must do so for a legitimate business reason or as required to protect the workplace under analysis of the ADA’s “direct threat” standard.
Essentially, the type of business usually dictates whether vaccines should be mandatory. For example, healthcare, schools and nursing homes could reasonably require mandatory vaccinations for any disease that stands to risk the health of other co-workers or the populous they serve. The Occupational Safety and Health Administration (OSHA) requires employers to provide employees with a workplace that is safe and healthy and protects against hazards. COVID-19 outbreaks could cause death or serious harm, as evidenced this past year and so employers are required to implement reasonable protections to keep the workplace safe. Vaccines are additional tools to help employers prove they are implementing measures to keep the workplace safe.
The Equal Employment Opportunity Commission (EEOC) updated its 2009 pandemic guidance this year due to COVID-19, acknowledging the Coronavirus poses a “direct threat” to the workplace as defined by the ADA, thereby permitting more extensive medical inquiries and controls in the workplace, such as temperature readings and medical questions related to recognized symptoms of COVID-19. The EEOC guidance states a person with symptoms of COVID-19 or who has COVID-19 presents a direct threat to the workplace. Employers are permitted therefore to implement measures to detect when employees might be infected and protect employees.
Historically, the EEOC recognized certain businesses may implement a mandatory vaccine requirement. However, the updated guidance was silent on mandatory COVID-19 vaccinations. It is reasonable to believe the EEOC would have no objections to a mandatory vaccine policy for healthcare facilities, nursing homes or schools. The EEOC may even determine that mandatory vaccination requirements for employers or businesses who do not operate in those venues are also permissible in light of its previous declaration that COVID-19 and employees who have contracted COVID-19 are a “direct threat” to the workplace as the EEOC did not limit its determination that COVID-19 poses a direct threat to the workplace on specific types of workplaces. It is likely the EEOC will update its pandemic guidance once COVID-19 vaccines become available in the United States, so employers should continue to stay current on any EEOC news.
Employers who implement any mandatory vaccination policy must honor exceptions for medical or disability reasons or religious objections. Disability or medical reasons may prevent an employee from having a vaccine. An employer must offer accommodations unless the accommodations would place an undue hardship on the employer or the employee poses a direct threat to the health and safety of others.
Other issues employers might note in determining whether to implement a mandatory vaccination policy:
- Employers implementing a mandatory vaccination policy should bear the costs of the vaccinations and pay non-exempt employees their hourly wage for time spent getting the vaccination and any travel required to and from the vaccination site.
- An employee may be covered by worker’s compensation claims if a required vaccine harms the employee.
- The consequence if an employee refuses to take the vaccine and does not have a legal exception. Requiring mandatory vaccinations for only those employees who are willing to comply does not help much to protect the workplace.
- Objections to employer mandates and employee complaints are protected by the NLRA.
Be Audit-Secure™
Lisa Smith, SPHR
