Happy New Year!
Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19. However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work. The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.
According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.
Of course, there are always exceptions to the general rule. Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.
Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:
- the duration of the risk
- the nature and severity of the potential harm
- the likelihood that the potential harm will occur
- the imminence of the potential harm
If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.
Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.
Always best to contact legal counsel if you have any further questions.
Ellen M. Leibovitch
Board Certified Labor & Employment Lawyer
ASSOULINE & BERLOWE, P.A.
2101 N.W. Corporate Blvd., Suite 410
Boca Raton, Florida 33431