COVID-19 vaccinations: Considerations for return to work planning in the United States

As the COVID-19 vaccine rollout continues, a significant question for U.S. based employers will be whether or not to implement a mandatory vaccination program, along with other return-to-work measures. Guidance published by the Equal Employment Opportunity Commission (EEOC) in December 2020 (EEOC Guidance) suggests that a mandatory vaccine program is lawful, subject to a number of caveats and statutory considerations. Employers should carefully consider these caveats and considerations prior to implementing any mandatory vaccination regime. For employers with workforces in Canada, see our bulletin discussing considerations in the Canadian context.

What you need to know

• EEOC Guidance paves the way for employers to implement mandatory vaccination programs, with exceptions for accommodations. Employers must reasonably accommodate employees who have a disability covered under the Americans with Disabilities Act or whose sincerely held religious beliefs or practices prevent them from taking the vaccine under Title VII of the Civil Rights Act of 1964, to the point of undue hardship.
• Employees’ privacy considerations under the Americans with Disabilities Act are engaged if their employer collects medical information (which includes the collection of pre-screening information if an employer administers the vaccines internally, as well as the submission of vaccination records if the vaccines are administered off-site).
• Employers must check other laws, regulations, directives or guidance regarding COVID-19 vaccines, particularly as state laws regarding employer vaccination programs vary.

1. The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) protects qualified employees with a disability from discrimination in the workplace. As the ADA limits an employer's ability to make disability-related inquiries or require medical exams, a mandatory vaccination program implicates key employee protections provided by the ADA.

Vaccination is not a medical examination

The EEOC Guidance states that the administration of a COVID-19 vaccination to an employee by an employer or a third party on behalf of the employer is not a “medical examination” under the ADA as the employer is not seeking information about the employee’s impairments or current health status by administering a vaccine to protect the employee against COVID-19. However, if an employer requires employees to be vaccinated and the employer administers the vaccine, pre-screening questions may result in disclosure of information triggering the ADA’s restriction of disability-related inquires, thus exposing an employer to liability.

Disability-related inquiries are protected under the ADA

Employers asking pre-screening questions may elicit information about a disability of a current employee. The ADA precludes employers from such pre-screening inquiries unless the questions are job-related and consistent with business necessity (the ADA standard)¹. To satisfy this standard, the EEOC requires an employer to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and therefore, does not receive a vaccination, will pose a “direct threat” to the health or safety of the workplace.

A direct threat is defined as 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”², to be determined on the basis of the best available objective medical evidence. Although the EEOC, in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, classified COVID-19 as a direct threat, this classification alone does not provide sufficient footing to meet the ADA standard. Employers must assess, on a case-by-case basis, four factors to determine whether the employee poses a direct threat in the workplace: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood the potential harm will occur; and 4) the imminence of the potential harm³.

The EEOC Guidance clarifies that an employer’s request that an employee provide proof of a COVID-19 vaccination is likely not a disability-related inquiry, as simply requesting such proof is not likely to elicit information about a disability. Further inquiries made by the employer, however, such as inquiries relating to why an individual did not receive a vaccination, are likely subject to the ADA standard.

The EEOC Guidance provides that disability-related screening questions can be asked without employers needing to meet the ADA standard in two situations: 1) if the vaccine is offered on a voluntary basis and the decision to answer pre-screening, disability-related questions is also voluntary⁴; or 2) if the employee receives the vaccine from a third party who does not have a contract with his or her employer.

Confidentiality

The ADA requires all medical information about a particular employee to be stored separately from the employee’s personnel file to limit access to such information. Medical information includes historical diagnoses, treatments and whether or not an individual has requested or is receiving a reasonable accommodation. Employers should ensure only those who “need to know” the identity and medical condition of each employee are provided this information.

2. Exemptions under the ADA and Title VII of the Civil Rights Act of 1964

Employers planning to implement mandatory vaccination programs must consider the mechanisms for employees to request and receive accommodations. Title VII of the Civil Rights Act of 1964 (Title VII) provides that an employer must provide reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance, to the extent that such accommodation does not impose an undue hardship on the employer⁵. Employers may consider granting exemptions on a broader basis than that required under federal law to accommodate disabilities under state or local law. For instance, in litigation involving mandatory flu vaccination policies, courts have reached different conclusions on whether allergic reactions qualify as a disability under the ADA, depending on intensity, duration and other particulars of an individual’s reaction⁶. As a result, offering health-related exemptions beyond statutory requirements may be appropriate.

EECO’s clarification of undue hardship

If an employer, through the four-factor analysis, determines an exempt employee poses a direct threat at the workplace, the employer should explore if reasonable accommodations that eliminate or sufficiently reduce the risk of harm are possible. Under the ADA, employers are encouraged to use a flexible, interactive process to assess potential reasonable accommodations⁷. Undue hardship generally means significant difficulty or expense under the ADA. Under Title VII, undue hardship is a slightly lower threshold, at more than a de minimis cost or burden for the business. In the context of COVID-19, the EEOC Guidance notes an employer’s analysis may include analyzing the prevalence of workplace employees who have received the COVID-19 vaccination or employees’ contact with those with unknown vaccination status.

The EEOC Guidance acknowledges that there may be situations where an accommodation is not possible to eliminate the direct threat or reduce it to an acceptable level. In these cases, the EEOC Guidance states it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean employers may automatically terminate employees who cannot both comply with a mandatory vaccine policy and be reasonably accommodated. Employers must determine if any other rights apply under equal employment opportunity laws or other federal, state, and local authorities.

3. Title II of the Genetic Information Nondiscrimination Act

Under Title II of the Genetic Information Nondiscrimination Act (GINA), employers may not inquire about or discriminate on the basis of genetic information, except in narrow circumstances. The EEOC Guidance states administering a COVID-19 vaccination to employees or requiring employees to provide proof of vaccination does not violate GINA. Nevertheless, employers must not violate GINA through pre-vaccination medical screening inquiries that ask about employees’ family medical histories or immune systems, nor can they outsource pre-screening to a to a third party that makes such inquiries.

4. Pregnancy Discrimination Act

The EEOC Guidance reminds employers that under the Pregnancy Discrimination Act, women affected by pregnancy, childbirth, and related medical conditions must be treated the same as other similarly-situated employees. As a result, employees unable to receive the vaccine due to pregnancy-related medical conditions may be entitled to reasonable accommodations.

5. Other Employer Considerations

Occupational Safety and Health Act

The Occupational Safety and Health Administration (OSHA) issued guidance on January 29, 2021 for preventing the spread of COVID-19 in the workplace. The guidance provides best practices for COVID-19 prevention programs but does not comment on the implementation of vaccination policies in the workplace. The OSH Act imposes a general duty on employers to keep workplaces free from recognized hazards that cause, or are likely to cause, serious physical harm to employees⁸. This may be the case where COVID-19 is present in the workplace and the employer’s existing efforts to control exposure are insufficient. Determining if the hazard reaches the level of “serious physical harm” is a fact-specific exercise. OSHA categorizes an employee’s risk of workplace exposure from COVID-19 in four categories, from “lower exposure risk” (which includes office employees), to “very high-risk exposure” (which includes health care employees performing aerosol-generating procedures). Based on their employees’ actual exposure risk, as to which the OSHA categories are just a general guide, employers should take appropriate mitigating actions. Employers that choose not to mandate a mandatory vaccination policy always have the option of implementing a voluntary scheme that encourages or makes it more feasible or convenient for employees to receive one of the vaccinations.

National Labor Relations Act

Unionized employers should be mindful that collective bargaining agreements (CBAs) may limit an employer’s ability to mandate employee vaccinations, unless required by the local, state, or federal law. Certain CBAs may obligate an employer to pay for lost work time, for example, in cases where the employee spends time waiting to receive medical attention during the employee’s regular work hours.

Health Insurance Portability and Accountability Act

In instances where vaccines are not administered on-site, employers requiring employees to show proof of vaccination must consider employees’ privacy rights. In addition to the ADA’s confidentiality obligations and state and local laws, the Health Insurance Portability and Accountability Act (HIPPA) applies to certain “covered entities”. Employer group health plans are HIPPA-covered entities; as a result, the dissemination of health plan records, such vaccination records, to employers is prohibited by HIPPA. As a result, health plans are prohibited from providing the employer with an employee’s vaccination records directly, but the employer can still request vaccination proof from the employee as discussed in Section 3 above.

Looking ahead

Employers contemplating whether a mandatory vaccination program is appropriate to keep their workplace safe must first recognize that widespread vaccine availability is not expected until spring of 2021, at the earliest. Along with vaccine availability, employers must consider their response to and communication addressing employee concerns surrounding mandatory vaccinations, including processes for employees requesting accommodations for health and religious reasons. Employers should ensure any vaccine-related questionnaires do not contain unnecessary screening questions and are narrowly tailored, and must also have methods in place to keep any employer-required documentary proof of employee’s vaccinations confidential.

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¹ 42 U.S.C. § 12112; 29 C.F.R. § 1630.14.

² 29 C.F.R. § 1630.2(r).

³ 29 C.F.R. § 1630.2(r).

⁴ 29 C.F.R. § 1630.14(d).

⁵ 29 C.F.R. § 1605.2.

⁶ See, for example, Norman v. NYU Langone Health System, 19 Civ. 67 (AT) (S.D.N.Y. 2020) where the plaintiff claimed the flu vaccine caused her shortness of breath and chest palpitations, a reaction which impaired the major life activity of breathing. Torres J. of the United States District Court held the plaintiff failed to establish that her allergic reactions to the flu vaccine constituted a disability at the time of her requested accommodation. However, the court noted some reactions to vaccines can be severe enough in intensity, duration, frequency, or after-effects to rise to the level of a disability under the ADA, see also Hustvet v. Allina Health Systems, 283 F. Supp. 3d 734 (D. Minn. 2017).

⁷ 42 U.S.C. §§ 2000e(j); 42 U.S.C. § 12111(10)(A) and (B); 29 C.F.R. § 1630.2(p)(2).

⁸ 29 U.S.C. § 654(a)(1).

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