Just in time for the holidays, the FDA has recently approved the emergency use of the first two COVID-19 vaccines, with at least two more in the final stages of clinical trials. As these vaccines become available to certain sectors of the population, the EEOC has updated its guidance regarding the ADA and other considerations relative to the pandemic to include employee privacy and other legal considerations employers must grapple with related to requiring or administering the vaccines in the workplace. The full list of FAQs are available here. While it will likely be months before the majority of employees are able to receive a vaccine, it is important for employers to educate themselves on the EEOC’s guidance in preparation for the vaccine rollout.
The guidance does not interfere with or prevent employers from following CDC or other federal, state, or local public health authorities’ guidelines and suggestions, and the EEOC advises employers to continue to follow guidance from those authorities.
Can Employers require Employees get vaccinated?
Per its guidance, the EEOC makes clear that employers will, generally, be allowed to require their employees to receive a COVID-19 vaccine when it is available to their sector. This applies regardless of whether an employer chooses to administer the vaccine to its employees itself (or through a third-party contractor hired to administer the vaccinations) or if it requires employees to get the vaccine through their own medical provider.
What type of information or documentation can Employers request from Employees?
While the administration of the vaccine itself is not considered a “medical examination” and does not implicate the ADA or other EEO laws pertaining to employee privacy, pre-vaccine medical screening questions may implicate these laws. Medical screening questions which are considered “disability-related inquires” are not permitted under the ADA unless an employer can show that these inquiries are “job-related and consistent with a business necessity.” Pre-vaccination screening questions which ask about genetic information may also implicate laws pertaining to employee privacy, such as GINA.
For employers who require their employees to receive a COVID-19 vaccination from their personal medical provider, requiring employees to show proof of receipt is not a “disability-related inquiry” and therefore does not trigger any ADA considerations. However, subsequent questions, such as asking why an employee did not receive a vaccination, may elicit information about a disability and could be subject to restrictions under the ADA.
Employers should be reminded that the employee’s medical professionals may collect genetic or disability-related information from an employee. Employers who require employees to provide proof of receipt of the vaccine may wish to warn their employees to eliminate any medical or genetic information from that proof to avoid implications under the ADA or other employee privacy laws.
What happens if an employee is unwilling or unable to get the COVID-19 vaccine?
Employees may not be able to receive a COVID-19 vaccine due to either a disability or a sincerely held religious belief or practice. Employers are allowed to exclude these employees from their workplaces as the EEOC has determined that COVID-19 creates a direct threat in the workplace. However, employers will need to determine whether a reasonable accommodation, such as remote work or temporary relocation, can be made for that employee. An employee’s eligibility to take leave under the FFCRA (or other similar emergency legislation), FMLA, or employer policies under these circumstances should also be explored prior deciding to terminate them.
Is there a requirement to bargain over mandated vaccines in a unionized workplace?
While the State Board of Labor Relations has not currently provided guidance on the issue, it seems likely that unionized workplaces will also be able to require employees to receive the vaccine due to the employer’s obligation to provide a safe working environment. It does seem likely, however, that employers will be obligated to engage in bargaining over the implementation of the vaccine and over accommodations for employees who refuse or are unable to get vaccinated.
The Labor and Employment Law team at Berchem Moses will continue to keep you updated on all pertinent legal updates on ongoing issues arising from the COVID-19 pandemic and remain available to help you navigate these unprecedented challenges.