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Recent announcements regarding the availability of vaccines for the COVID-19 virus have been both exciting and concerning for some employers and employees. Vaccinations are being rolled out nationwide and (hopefully) soon will be available for the general population. Employers now need to consider how they will address questions and concerns with respect to the vaccination and its effects on the workplace.
One question is whether employers may require current employees or new hires to be vaccinated. In March 2020, the Equal Employment Opportunity Commission (EEOC) confirmed that taking employee temperatures and asking screening questions was permitted. These types of safety protocols are considered medical examinations which, under the Americans with Disabilities Act (ADA) are only permitted when job-related and consistent with business necessity. The EEOC’s position was that the COVID-19 pandemic met the direct threat requirement. Similarly, private employers can require vaccinations. The EEOC has recently issued new guidance that employers may administer the vaccine, or request confirmation of receipt of the vaccine, and that neither is a medical examination. However, beware. The inquiry does not stop here.
Although the vaccination itself is not considered a medical examination, prescreening questions required for vaccination may be if they may elicit information regarding a disability. Therefore, such inquiries must be job-related and consistent with business necessity. The EEOC says that to meet that standard, an employer should “have a reasonable belief, based on objective evidence, that an employee who does not answer the [pre-vaccination screening] questions, and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others” in the workplace. Employers must conduct an individualized assessment to determine whether a direct threat exists as follows: (1) the duration of the risk; (2) the nature and severity of potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of potential harm. Additionally, if the employer is going to administer the vaccine in the workplace, all pre-screening questions must be maintained confidentially. These questions are also subject to other restrictions, such as limitations on asking about a person’s family under the Genetic Information Non-Discrimination Act (GINA).
Further, if a safety based qualification standard, such as vaccination, screens out or tends to screen out individuals with a disability, then the employer must show that the risk of harm to the health or safety of others cannot be eliminated or reduced by reasonable accommodation. Likewise, employers may encounter those who cannot be vaccinated due to sincerely held religious beliefs or practices. In such cases, an employer must also provide a reasonable accommodation for that religious belief, practice or observance unless it poses an undue hardship.
Thus, while an employer may require vaccination, this does not mean that an employer can automatically terminate an employee who cannot be vaccinated due to disability or religion. The employer cannot exclude the employee from the workplace or terminate the employee unless there is no way to reasonably accommodate or otherwise reduce the risk so that the unvaccinated employee does not pose a direct threat. Only if the direct threat cannot be reduced to an acceptable level can the employer exclude the employee from entering the workplace.
Therefore, considering whether to require vaccination is a complex issue that does come with risks. Consider whether the employer might promote rather than require vaccination. Incentives such as gift cards, lunches and/or providing time to get the vaccine are potential ways to promote vaccination. As it become more available, it might be offered in the workplace to make vaccination more efficient and more accessible.
As more information pertaining to the vaccines comes available, employers will have additional information to rely on in making its determinations. This must be done advisedly and with an eye toward long term effect. If we can be of any assistance, please do not hesitate to contact our team.
Nichole Mooney represents individuals and businesses of all sizes in business litigation and employment related issues. Her representation includes drafting employment and severance contracts, drafting handbooks and policies, and counseling and representing employers in litigation regarding all types of employee actions, rights and obligations, including, but not limited to, wage and hour questions and disputes, FMLA issues, claims of discrimination, retaliation, theft of trade secrets, and all other manner of employment related litigation under Florida and federal law. Nicky also addresses claims regarding restrictive covenants including non-compete agreements, trade secrets litigation and protection of confidential information. She may be reached at firstname.lastname@example.org or via phone at (407) 428-5110.