Since the development of the COVID-19 vaccine, there have been questions and concerns regarding possible vaccination requirements in the workplace. In response to these issues, on May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidelines for employers. However, as the Centers for Disease Control (CDC) and state and local public health authorities continue to revise their recommendations, there may be additional changes and updates to the EEOC guidelines. Employers and employees should stay current with the latest developments or speak to an attorney for clarification on how their workplaces may be affected.
In general, employers can require employees physically entering the workplace to be vaccinated against COVID-19. However, employers must comply with federal laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act as well as other federal, state, or local laws that protect employees.
For example, Title VII protects employees from discrimination based on race, color, national origin, religion, sex, and other criteria. Generally, it only applies to employers with at least 15 employees, labor unions, and employment agencies. However, New York State and New York City Human Rights Laws apply to all employers. Vaccination policies must not intentionally discriminate against or have a disparate impact on individuals in one of these protected groups.
As discussed further below, religious and disability discrimination laws provide that employers must consider requests for reasonable accommodations from employees who refuse the vaccine on those grounds.
The ADA and the Rehabilitation Act prohibit adverse or inferior treatment of employees based on their disability and may require that employers provide a reasonable accommodation to allow a disabled employee to perform his or her job. In the context of COVID, employers may legally mandate vaccination if the reason is job-related and consistent with business necessity. However, if an employee cannot be vaccinated because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
Relevant factors in determining whether there is a direct threat are: (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. Employers should consider current medical knowledge from the CDC and other sources as well as the employee’s work environment. This includes the frequency and duration of the employee’s close contact with others, ventilation in the work area, space for social distancing, use of masks by other employees, routine COVID testing of employees, and the number of partially or fully vaccinated individuals already in the workplace.
If an employee is a direct threat, the employer must consider whether a reasonable accommodation would minimize the threat. Examples of possible accommodations include requiring the employee to wear a mask, changing shifts or workstations, limiting contact with other employees, reassignment to another position, and permitting telework. Best practice is for employees to be flexible and consider all options before denying an accommodation request.
Employers are not obligated to provide a reasonable accommodation if it would cause an undue hardship, meaning a significant difficulty or expense. In determining whether there is an undue hardship, agencies and the courts will consider the cost and financial resources of the employer, including its financial losses due to COVID; the nature of the business; and the employer’s size, among other factors. Also relevant are any current circumstances which may make it more difficult or expensive to acquire or provide certain accommodations. For example, if there are shortages or delays in acquiring equipment for a work at home option.
Under Title VII and many state and local discrimination laws, employers are required to make reasonable accommodations for an employee’s sincerely held religious beliefs and practices, so long as there is not an undue hardship on the employer. A religious accommodation is an adjustment to the work environment that will allow an employee to practice his or her religion.
Where an employee refuses vaccination on the grounds that it violates his or her religious beliefs, employers may be obligated to provide an accommodation. However, vaccine-related requests should be handled according to the same standards as any other accommodation request. Employers can refuse accommodation if they can demonstrate undue hardship, which under Title VII, has been interpreted to mean that the accommodation imposes more than a minimal cost or burden on the employer. According to the updated guidelines, the undue hardship assessment under Title VII is an easier standard for employers to meet than the ADA’s undue hardship standard.
Factors used to determine the existence of undue hardship in the religious accommodations context include: the type of workplace; the employee’s duties; the relative cost to the employer of making the accommodation; the effect on workplace safety, efficiency, and the rights of other employees; and whether it violates the terms of a collective bargaining agreement or job rights established through a seniority system. Agencies and courts may also consider the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.
The EEOC guidelines provide that employers may offer incentives (rewards and penalties) to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community, provided the vaccination information is kept confidential. However, there are a few requirements. Where the vaccine will be administered directly by an employer or its agent, the incentives cannot be “so substantial as to be coercive.” The reasoning is that employees must answer pre-vaccination disability-related screening questions and a large incentive could make employees feel pressured to disclose protected medical information. This restriction does not apply if the employee voluntarily received the vaccination from a third party.
Employers may offer incentives encouraging employees’ family members to provide confirmation of vaccination. Further, they may give family members the opportunity to get vaccinated by the employer or its agent but may not require family members to get the vaccine from the employer or its agent.
As more workplaces return to in person operations, employers will need to address COVID-related issues and develop appropriate policies and procedures, particularly for accommodation requests. Consulting a knowledgeable employment attorney can help maintain a safe workplace and minimize the risk of liability as we continue to deal with the effects of COVID-19.