Posted on January 04, 2021
By: Lily Crespo Esq.
Given the skepticism expressed by many concerning the safety of the COVID-19 vaccine, employers undoubtedly will confront vaccination-related issues, whether they implement mandatory vaccination policies or not. We’ll continue to monitor and report on developments in this area. Stay tuned for developments on policy, procedures and action plans for employers and schools…
What happened? On December 16, 2020, the EEOC updated its ongoing COVID-19 guidance with questions-and-answers specifically addressing mandatory COVID-19 vaccination policy issues. The short version of this guidance is that employers can implement and enforce mandatory COVID-19 vaccination policies for employees, with certain exceptions and caveats.
What are the key points from the guidance? As mentioned in our previous post on this issue, the right of an employer to implement a mandatory vaccination policy has significant legal and practical ramifications. The new guidance provided some important information…
- The EEOC granted permission to employers to require a Covid-19 vaccine: In the guidance, the EEOC confirmed the vaccine does not qualify as a medical examination. Why does that matter? This clarification on what the vaccine is not gives employers the green light to require that employees obtain the Covid-19 vaccine—subject to some exceptions listed below.
- Requirements that will be applied to screening: An employer can mandate the COVID vaccine so long as long employees obtain the vaccine from a third-party pharmacy or medical provider with no connection to the employer. It gets complicated if the employer wants to be the one administering the vaccine.
- Requesting proof of vaccine: Employers can do this!
- Consideration of accommodations: The EEOC repeated long held guidance that employers MUST consider ADA and religious accommodations when requested.
- Direct threat still holds center stage on this issue: What if an employee seeks an ADA or religious accommodation to avoid taking the Covid-19 vaccine? The EEOC made clear that the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” The EEOC advised that employers must conduct an individualized assessment of the usual four factors in determining whether or not a direct threat exists:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
- Employers cannot automatically exclude an employee from the workplace for not getting a vaccine: even if you find that an unvaccinated employee poses a direct threat, the employer cannot automatically exclude them from the workplace. From the EEOC guidance:
“If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
Some key points for employers to consider: employers now have “legal” clearance to require vaccines, but the more important question is, “Should we require them?”
- Take a breath: Access to the vaccine for regular workers is still several months away. While it is good practice to look ahead on potential legal issues, it also makes sense to wait and see how this all gets worked out.
- A bit of a hitch: How can you require a vaccine when many of your employees won’t have access to the vaccine till springtime? Just a practical consideration…
- Incentives: Start brainstorming how you will incentivize your employees to take the vaccine? Be sure to discuss any considered incentives with your employment attorney.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.