As COVID-19 vaccines continue to gain Emergency Use Approval (EUA) from the FDA and begin to become available to the public, employers are considering whether they should administer a vaccine or require employees to receive a vaccination. On December 16, 2020, the EEOC updated their COVID-19 guidance to include information relating to COVID-19 vaccinations in the workplace. The detailed EEOC guidance has been summarized below to provide a highlight of some of the most important aspects employers should consider before deciding.
Potential Pitfalls If Employer Administers Vaccination
If an employer decides to administer a COVID-19 vaccine to employees, it would not be considered a “medical examination” for the purposes of the ADA, and therefore could be permitted. However, there are certain pre-vaccination questions that the CDC requires to be asked by health care providers which are likely to elicit information about an employee’s disability.
Asking these pre-vaccination medical screening questions would be subject to the ADA’s standard for disability-related inquiries. Accordingly, employers would need to show that the pre-screening questions are “job-related and consistent with business necessity.” Compliance with these ADA standards would also extend to a contractor who administers the vaccine on the employer’s behalf.
The two instances when the “job-related and consistent with business necessity” standard does not apply to pre-screening questions are (1) when the employer offers the vaccine to employees on a voluntary basis, or (2) when the employee receives the vaccine from a third-party provider that has not contracted with the employer.
Title II of the Genetic Information Nondiscrimination Act (GINA) is implicated when genetic information is used to make employment decisions, or when genetic information is acquired or disclosed. Pre-screening inquires that ask for genetic information, such as the medical histories of family members, may violate GINA. If pre-vaccination questions include questions about genetics, then employers who want to ensure that employees are vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. GINA does not prevent the health care provider of an individual employee from asking genetic-related pre-screening questions, but it does prevent an employer or doctors working for an employer from asking such questions.
Potential Pitfalls If Employer Requires Vaccination, But Does Not Administer
If an employer simply asks or requires an employee to show proof of receipt of a COVID-19 vaccination, this would not be considered a disability-related inquiry under the ADA. However, if the employer asks follow-up questions (i.e., “Why didn’t you get the vaccine?”), this may elicit disability-related information, and the questions would need to meet the ADA’s standard of being “job-related and consistent with business necessity.” Additionally, if an employer decides to require proof that an employee received the vaccine from a health care provider, the employer should warn the employee not to provide any medical information with their proof to avoid ADA issues.
Additional Potential Pitfalls Under ADA
As was stated above, the administration of a COVID-19 vaccine to an employee by an employer is not a “medical examination” for purposes of the ADA. If an employer requires vaccinations, the ADA does allow qualification standards that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Since COVID-19 is a threat to public health, it is very likely that employers will be able to argue that requiring vaccinations is “job related and consistent with business necessity.” If this safety-based qualification standard is used to require vaccinations, employers must conduct individualized assessments to show that an unvaccinated employee would pose a “direct threat,” as is defined in the ADA.
If an employer then determines that an individual who is unable to be vaccinated due to a disability poses a direct threat at the worksite, the employer must attempt to provide a reasonable accommodation eliminating or reducing the risk before the employer may exclude the employee from the workplace. That employee can be prohibited from physically entering the workplace, but that employee may not automatically be terminated for their inability to receive a vaccination.
A possible reasonable accommodation would be to allow the employee to work from home or move them to a workplace where there is reduced risk to the workplace. If it is not possible for the employee to work from home or be relocated, they may be eligible for different types of leave. Employers and employees should conduct an interactive process to identify possible workplace accommodations. Employees who request an accommodation should not be retaliated against, and it must not be disclosed when an employee is receiving a reasonable accommodation.
Additional Potential Pitfalls Under Title VIII of the Civil Rights Act
If an employee informs an employer that they are unable to receive a vaccination because of the employee’s sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation, unless it would impose an undue hardship, as is defined under Title VII. An employer is justified in requesting additional supporting information if the employer has an objective basis for questioning the religious nature or sincerely of the belief, practice, or observance; however, the definition of religion is broad under Title VII, and the employer should ordinarily assume that the request for the religious accommodation is sincere, even if the employer may be unfamiliar with it.
Additional Potential Pitfalls Under California Constitution’s Right to Privacy
In 1994, the California Supreme Court ruled in Hill v. NCAA that the right to privacy under the California Constitution could be implicated if private entities conducted drug testing programs. The Hill case established that there is a violation of the constitutional right to privacy when a private entity’s program affects a protected privacy interest, and the consequence of refusing to participate in the program results in the denial of a legal right. The right to privacy, however, is not absolute, and Hill states that privacy concerns must be balanced with other “legitimate competing interests.”
Since COVID-19 has been deemed a threat to public health in California since March 2020, it is likely that the threat of exposure due to lack of employee vaccinations may lead to a “legitimate competing interest.” Potential “legitimate competing interests” for requiring vaccinations would be to (1) protect the workforce and customers from the spread of COVID-19, (2) allow for employers to continue to provide employment opportunities, and (3) enable companies to continue to provide services to the public, thereby preserving the economy. However, courts have not yet directly ruled on whether any of the above are acceptable legitimate competing interests that override the right to privacy.
The requirements “imposed on private employers by the California constitutional right to privacy will depend upon the application of the elements and considerations…to the employer’s special interests and the employee’s reasonable expectations prevailing in a particular employment setting.” It is also possible that some employers may be subject to a “least restrictive alternative” burden if there is no existing decreased expectation of privacy in a particular workplace. Therefore, employers should be wary of potential “right to privacy” claims under the California Constitution if they require vaccinations or proof of vaccinations.
Other Quick Points
Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. Any follow-up questions should be “job-related and consistent with business necessity.” Employers should warn employees to not include personal information as a part of their proof.
Employers should consult the standards and guidance from the CDC, OSHA, Cal/OSHA and any other relevant federal, state, and local standards and guidance.
Employers should determine if any additional rights are extended to the employee under the EEO laws or other federal, state, and local requirements.
If an employer’s workforce is unionized, the employer may need to refer to the controlling Collective Bargaining Agreement to see if the employer is required to bargain with the union over vaccination mandates.
Mandating employee vaccinations could also potentially lead to the violation of rights of pregnant employees under Title VII of the Civil Rights Act or the ADA.
If an employer receives any employee medical information while administering or requiring proof of vaccinations, the employer must keep that information confidential.
Requiring employees to receive a vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.
Conclusion
Two of the biggest concerns for employers in requiring or administering vaccines are making sure employers are not gathering too much medical or genetic information from employees and making sure that employees are not being discriminated against based on their disabilities or religious beliefs.
Employers must be very cautious about the information they ask for or receive from employees if the employer is going to implement a policy that involves vaccine administration or the requirement of proof of vaccination. If employees are not able to receive the vaccination because of disability or religion, the employer will have to look for ways to accommodate them. If accommodations are not available, employers must be aware of all potential leaves or benefits that the employee may be entitled to.
Some employers are considering different ways to encourage employees to receive vaccinations without requiring them. Given all the potential pitfalls that come with requiring vaccinations, encouraging vaccinations through appropriate incentives may be the best bet for the majority of employers.