By Christopher M. Lewis
On Thursday, January 14, 2021, President-Elect Joseph R. Biden, Jr. announced a plan to administer 100 million doses of the COVID-19 vaccine within the first 100 days of his presidency. Indeed, getting the virus under control is the President-Elect’s “number one concern” following his inauguration on January 20, 2021—the date, which, coincidentally, marks the one-year anniversary of the first confirmed case of COVID-19 in the United States.
Nonetheless, the President-Elect’s lofty goal to have widespread availability of the COVID-19 vaccine during his first 100 days remains just one of many practical hurdles facing the incoming administration. Another potentially more pressing hurdle is how to ensure that the public-at-large actually takes the vaccine. As public health expert and emergency physician, Dr. Leana Wen, stated in an interview with the Associated Press, the President-Elect’s biggest challenge is to “win the hearts and minds of the American people to follow his lead” in trusting the science and taking the vaccine.
This challenge, and other considerations, are especially important to employers that remain in survival-mode as they try to ward off further negative impacts of the ongoing pandemic. Consequently, a significant number of employers are considering mandating that their employees take the COVID-19 vaccine as a condition of employment. But such a mandate begs the question: What are the risks? Specifically, what are the legal risks of compelling employees to take a vaccine that exists within a dichotomy of widespread support and widespread skepticism—a microcosm of the COVID-19 pandemic itself. Fortunately, there is some guidance on the issue.
On December 16, 2020, the EEOC issued guidance that recognized that “[t]he availability of COVID-19 vaccinations may raise questions about the applicability of various equal employment opportunity (EEO) laws.” In so doing, the EEOC expounded upon several significant questions facing employers that are currently considering requiring employees to take the vaccine. This article will explore two of them in turn.
1) If an employer requires vaccinations, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of, e.g., a disability?
Employers that are considering a vaccine mandate amongst their workforce are rightfully concerned with the legal jeopardy to which they may be exposed if their mandate unintentionally runs afoul of the Americans with Disabilities Act (“ADA”). Indeed, according to the EEOC, the relevant question becomes whether a vaccination requirement “screens out or tends to screen out an individual with a disability.” If so, to avoid liability, “the employer must show that an unvaccinated employee would pose a direct threat [to other employees] ‘due to 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.’” If an employer cannot make such a showing, they may be operating in contravention of the ADA.
The operative phrase in the EEOC’s guidance is whether a “direct threat” exists if an individual or class of employees refuses vaccination because of a purported disability. “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” Thus, to determine whether such a threat exists, the EEOC recommends that employers conduct an “individualized assessment” of (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
Importantly, if—after engaging in the individualized assessment—an employer concludes that a disabled employee poses a direct threat to the workplace, the employer cannot exclude the unvaccinated employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that unvaccinated employee does not pose a direct threat.”
Alternatively, if the direct threat cannot be reduced to what the EEOC deems an “acceptable level” (an undefined term of art within the guidance) the employer can, in fact, exclude an employee from physically entering the workplace. However, “this does not mean the employer may automatically terminate the worker.” Instead, some employees may be entitled to work remotely; or they may otherwise be eligible to take leave under the Families First Coronavirus Response Act, the FMLA, or under the employer’s internal leave policy.
If an employer determines that mandating its employees get the COVID-19 vaccine is preferable, and (more importantly) that they can administer the vaccine within the confines of the ADA and other employment statutes, the question becomes how does the employer navigate the practical realities of administering the vaccine itself—a question explored, in part, below.
2) Do pre-vaccination screening questions violate the ADA?
In addition to the above considerations when implementing a vaccine mandate, employers must also be wary of potential pitfalls in actually administering the vaccine itself. In other words, an employer must determine whether administering the vaccine directly to its employees is preferable, or whether it makes more sense to contract with a third-party healthcare provider. Importantly, those employers that are equipped to administer a vaccine in-house must be aware that the process of administering a vaccine remains subject to the ADA. That is because, according to the Center for Disease Control, employers and health care providers are required to ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent an employee from receiving the vaccination. These questions, and the answers they elicit, may contravene the ADA in some circumstances, thereby exposing the employer to liability.
On this issue, the EEOC has affirmatively determined that pre-vaccination medical screenings are “likely to elicit information about a disability.” Thus, “questions, if asked by the employer or contractor on the employer’s behalf, are ‘disability-related’ under the ADA.” Employers must therefore show that any disability-related screening inquiries are “job-related and consistent with business necessity” to avoid potential liability. Notwithstanding, an employer may avoid running afoul of the ADA if it can show that it has “a reasonable belief, based on objective evidence, that an employee who does not answer the [disability-related screening inquiries] and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”
There are alternatives to establishing this “reasonable belief,” however. “First, if an employer has offered a vaccination to employers on a voluntary basis . . . the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.” Alternatively, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, the ADA’s “job-related and consistent with business necessity” restriction would not apply to the pre-vaccination medical screening questions asked by the third-party provider.
Regardless of whether the employer or a third party administers the vaccine, it is important to note that asking or requiring an employee to show proof of vaccination is not a disability-related inquiry that would invoke the ADA’s protections. In other words, “[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” Still, employers need also recognize that subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information that would be subject to the ADA’s “job-related and consistent with business necessity” standard discussed above.
These considerations, and others, will assist employers in planning and implementing a vaccine mandate. The ADA is not the only statute that employers should consider prior to fully committing to any program, however. Employers must also consider the impact of Title VII, Title II of the GNI, and other federal, state, and local statutes. Similar to several other aspects of the pandemic, an employer’s responsibilities are fluid. It is therefore incumbent on employers to stay well-informed on any and all EEOC guidance on these novel and complex issues. Implementing a cohesive and legally permissible plan can protect any employer’s employees. However, a plan must also be legally sound to ensure that an employer does not expose itself to unnecessary liability. It is a tall order to be sure—but it is one that may benefit your workplace and the public-at-large alike.
Ogletree Deakins – Memphis
christopher.lewis@ogletree.com
www.ogletree.com