Reece M. Almond
With COVID-19 vaccinations being distributed and administered around the country, the Equal Employment Opportunity Commission (EEOC) recently issued guidance to employers as they consider implementing vaccine-related policies in the workplace. Becoming familiar with such guidance will help employers comply with the Americans with Disabilities Act (ADA). Davenport Evans lawyer Reece Almond explains.
Mandatory Vaccinations
Most notably, the EEOC confirmed employers can require employees receive the COVID-19 vaccination. That’s right—employers can mandate employees be vaccinated. The ADA allows employers to implement qualification standards, including a requirement that employees not pose a direct threat to the health or safety of others. Therefore, if an unvaccinated employee poses a direct threat to the health or safety of others, the employer can require that employee receive a vaccination as a requirement of employment.
So how does an employer determine whether an unvaccinated employee poses a direct threat to the health or safety of others? The EEOC recommends a four-factor assessment: (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. If an unvaccinated employee will expose others to the virus at the worksite, an employer may conclude a direct threat exists and impose a vaccination qualification standard.
CAUTION – But what if an employee cannot be vaccinated due to a disability? With all qualification standards, employees with disabilities are permitted reasonable accommodations under the ADA. A vaccination qualification standard is no different. Thus, employers with mandatory vaccination policies must evaluate whether an employee who cannot be vaccinated due to disability may be provided a reasonable accommodation (i.e., not be vaccinated). The employer must evaluate whether measures can be taken to eliminate or reduce the risk of the unvaccinated employee so that he or she does not pose a direct threat to others. For example, can the unvaccinated employee be segregated from others so that transmission of the virus is highly unlikely? If a reasonable accommodation can be provided, then the employer must provide it and cannot discharge or take any other adverse action against the employee for refusing to be vaccinated due to disability.
Moreover, asking or requiring an employee to show proof of vaccination is not a disability-related inquiry. But asking follow-up questions (e.g., Why haven’t you been vaccinated?) may elicit information about a disability and thus trigger the ADA’s standard that such questions must be job-related and consistent with business necessity.
REMINDER – It is unlawful to disclose that an employee is receiving a reasonable accommodation, and it is unlawful to retaliate against an employee for requesting an accommodation.
At-Work Vaccine Administration
As vaccines become more accessible, employers may decide to administer vaccines at the workplace, either in-house or through a third-party contractor acting on behalf of the employer. The EEOC has confirmed the administration of the vaccine is not a medical examination under the ADA. However, pre-screening questionnaires could constitute a medical examination under the ADA; so the questions must be job-related and consistent with business necessity.
If an employer’s vaccination program is voluntary, then the pre-screening questionnaires must be voluntary, too. So if an employee chooses not to participate in the vaccination program and does not answer pre-screening questions, the employer may not retaliate against, intimidate, or threaten the employee for refusing to answer questions or refusing to participate in the vaccination program.
REMINDER – Employers should maintain all information about employee illness, including vaccination records and pre-screening questionnaires, as a confidential medical record in compliance with the ADA.
Davenport Evans can help your business draft policies related to communicable diseases and vaccines, or other needs emerging from the pandemic. Contact us at [email protected] or 605-336-2880, or find a lawyer here.
Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.