The short answer according to the Equal Employment Opportunity Guidelines recently issued is, “Yes.” Employers may require their employees to get COVID 19 vaccinations to continue to work. There are caveats. However, employers must still accommodate employees with disabilities under ADA, and they must also allow for exemptions based on strongly held religious beliefs. The question becomes may an employer terminate an employee who does not get vaccinated? The answer is “possibly.”
Suppose an employee cannot meet the requirement to be vaccinated based on a health-safety qualification standard. In that case, the employer must prove that the employee not being able to meet the requirement represents a “direct threat” to the health and safety of clientele or other employees in the workplace. The EEOC defines a “direct threat” as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodations (EEOC Informal Discussion Letter)[1]. EEOC guidelines provide a method for determining the threat level and whether the employer can offer a reasonable accommodation. EEOC guidelines also contain a warning to employers that vaccination requirements in some circumstances may create a disparate impact (possibly discriminatory impact) on certain classes or demographic groups of employees who face particular barriers to COVID 19 vaccines. Like most things related to COVID 19, agency guidelines often create more questions than answers for employers. It would be wise for employers to consult their employment attorney before implementing a policy or taking a position to discipline or terminate an employee for refusing the vaccine.
The EEOC recommends providing reasonable accommodations to employees with represented reasons for not getting vaccinated. These include alternate assignments, periodic COVID 19 testing, face masks, working remotely, and social distancing. There may be other alternatives based on the nature of the business.
There are various reasons why employees may not be vaccinated, ranging from medical conditions that would harm the employee who is vaccinated, such as employees who already have medical conditions that cause them a greater risk. Examples may include pregnant employees, employees with congenital disabilities, cardiopulmonary issues, and the like.
Can Employers Ask for Medical Information?
The EEOC holds that employers may still request vaccination information from their employees, provided that the nature of the request does not invade the domain of disability disclosures. A reasonable request to verify vaccination status through doctor-provided verification is not a violation. However, any information that the employer receives should be maintained separately from the employee’s regular personnel file. Employers should regularly keep separate employee files related to personnel records, medical records, and payroll records, sorting employee documents into different files according to the nature of the file. Employers should limit access to these files to supervisors or human resource and payroll employees who have a bona fide need to know the information. The employer is still required to maintain the confidentiality of employee medical, personnel, and payroll records.
Should Employers Offer Incentives to Employees to be Vaccinated?
There are no restrictions on employers offering incentives such as pay or additional leave to entice employees to get vaccinated. In many cases, it is a means of encouraging conformity to the vaccination policy. Employers should note that you cannot use incentives to promote disclosure of protected information such as a disability, genetic information, or any other class of protected information. Some employers provide free vaccinations for employees and family members of employees as an incentive. While incentives are, in most cases, a good idea, it is questionable whether employers should extend those incentives to family members of employees due to the potential risk of exposing protected information about the employee and or their family. Employers should keep in mind that while incentives may be worthwhile, there is a fine line between incentive and coercion, so while incentives are good, you may not want to make them too good, where employees will claim that they are coerced. This employment attorney advises his client against taking disciplinary action to get employees to take the vaccine.
Summary:
While employers have the right to require vaccination of their employees and require proof from their employees that they have been vaccinated, caution is appropriate. If your business has limited contact with the public or clientele, your workforce may be able to protect themselves through other means. In that case, you may not want to run the risk of legal actions against you for the minimal benefit of requiring your employees to prove they have been vaccinated. On the other hand, if your business has a high percentage of contact vulnerable populations, such as elder care, medical providers, nursing homes, retail sales, and other similar companies, you should seriously consider a policy on vaccinations. As the COVID 19 pandemic subsides and the population reaches herd immunity, this employment law question may subside and be less urgent. It is always a good idea to work with your company’s employment lawyer on these matters so that you have a basis to act with confidence when dealing with your workforce.
[1] https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-164