Hearing the growing calls to provide clear guidance on the extent to which employers can require their employees to obtain the COVID-19 vaccine, the EEOC has updated its Technical Assistance guide “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” on the subject of the COVID-19 vaccine.
What the heck does this have to do with FMLA, you ask?
Well, not a whole lot.
But: 1) advising clients on the COVID-19 vaccine takes up much of my life right now, so humor me while I offer my initial impressions here; and 2) this issue is governed extensively by the FMLA’s big sister, the Americans with Disabilities Act, which contains specific restrictions on an employer’s ability to subject employees to medical examination and disability-related inquiries.
Takeaways from the Updated EEOC Guidance
We’ll be analyzing these new guidelines in the upcoming days, but here are my first impressions of the updated EEOC guidance:
- Green light to require COVID-19 vaccine: In issuing this guidance, EEOC confirms that the COVID-19 vaccine is not a medical examination. Why is this significant? It effectively gives employers the green light to require that employees obtain the COVID-19 vaccine (subject, of course, to the exceptions noted below). This is one of the key takeaways of this guidance.
- Some requirements relating to screening questions: If the employer requires employees to obtain the vaccination, administered by the employer, the employer must show that any screening inquiries are job-related and consistent with business necessity. There are two exceptions to this rule. First, if the employer chooses to make the vaccine voluntary and the employee has the choice to answer (or not) pre-screening questions, this passes ADA muster. Second, if the employer requires that employees receive the COVID-19 vaccine and the employee receives the vaccine from a third party with whom the employer does not have a contract (think Walgreens or CVS), the ADA is not implicated. Put another way, an employer can mandate the COVID vaccine so long as long employees obtain the vaccine from a third-party pharmacy or medical provider with no connection to the employer.
- Proof: Employers can request proof of vaccine. Nice to get that important question quickly knocked off the list.
- Accommodations must be considered: As expected, the EEOC maintains its long-held position that employers must consider ADA and religious accommodations when requested.
- Direct threat still plays big role: Let’s assume that an employee seeks an ADA or religious accommodation to avoid taking the COVID-19 vaccine. What then? At this point, the EEOC tells us that the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” The EEOC advised that employers must conduct an individualized assessment of the usual four factors in determining whether or not a direct threat exists:
- the duration of the risk;
- the natured and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
- Refusal to Obtain Vaccine doesn’t mean automatic exclusion from workplace: The EEOC makes clear that, even if you find that an unvaccinated employee poses a direct threat, the employer cannot automatically exclude them from the workplace. The EEOC explains it this way:
If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
Practicality Should Rule the Day
On one hand, this latest EEOC guidance is welcome news for employers, as it gives us a road map (albeit with outstanding questions) for mandating vaccines. But, as I’ve shared with clients, the issue of mandatory vaccines is not as much a legal issue as it is a practical issue.
Sure, employers now have “legal” clearance to require vaccines, but the more important question is, “Should we require them?”
A couple of thoughts to keep in mind in the middle of this vaccine madness:
- Deep breaths. Your rank-and-file employees’ access to the vaccine is still several months away. So, why the rush to figure out right now whether you will mandate the vaccine? You’re far better off taking a wait-and-see approach to see how the kinks get worked out.
- Practical problems. How can you require a vaccine when many of your employees won’t have access to the vaccine till springtime? Let that sink in for a minute. Ok, I’ll move on.
- More practical problems. When the vaccine is finally readily available, it’s likely that at least 30ish% of your workforce will decline the vaccine. What will you do then? Fire 30% of your workforce? Of course not, suggesting that employees have some leverage now and into the future.
- Incentives. Start thinking about how you can strongly (but legally) incentivize your employees to obtain the vaccine. In the weeks ahead, we will be working with our clients to establish incentive programs to maximize the chances that employees voluntarily obtain the vaccine. Be sure to discuss the legality of these incentives with your favorite employment attorney.
In the meantime, breathe.
Don’t. Forget. To. Breathe.
We’re going to get through this.