On December 16, 2020, the Equal Opportunity Employment Commission (“EEOC”) issued guidance regarding vaccinations as they relate to employees. This blog focuses on the specific issue of what employers must consider when an employee indicates that they are unable to receive the COVID-19 vaccination because of a disability.
Can An Employer Have a Mandatory Vaccination Policy?
Before getting into the analysis relating to employees with a disability, let’s first tackle the issue of whether an employer can mandate vaccinations. As with everything these days, it is not all that clear. Even so, the EEOC drops hints throughout the Guidance that employers can in fact mandate vaccinations. It must be noted that nowhere in the Guidance does it explicitly state that employers can mandate vaccinations. Rather the Guidance assumes that mandatory employer vaccinations are an accepted and viable practice. For instance, FAQ No. K.5 reads:
If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that [they are] unable to receive a COVID-19 vaccination because of a disability?
Notice the scenario is worded in a way that does not question the validity of a vaccination requirement. In fact, it assumes mandatory vaccinations is a viable policy for employers. FAQ No. K.5 even references, “[m]anagers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request…” Again, this language assumes that vaccination requirements are acceptable.
FAQ No. K.7 reads in a similar way that reiterates the EEOC’s not-so-subtle hint that mandatory vaccinations are a valid employer policy:
What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
(NOTE: This blog focuses on the specific issue of when an employee cannot obtain a vaccine due to a disability.) Businesses should consult with counsel when considering whether to implement a vaccination requirement.
Let’s delve into the issue of when an employee is unable to receive the COVID-19 vaccination due to a disability…
What if an Employer Requires Vaccinations, and an Employee Indicates that They are Unable to Receive the Vaccine Because of a Disability?
What happens when an employee cannot get the vaccine because of a disability? What can an employer do? The EEOC provides guidance that has its basis in the Americans with Disabilities Act (“ADA”) and the associated regulations.
Let’s start with the foundation: Employers can have Qualification Standards. A Qualification Standard for a job must be, “job-related and consistent with business necessity…” Now, the ADA explicitly states that the term “Qualification Standard” may include a “requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”
What is a Direct Threat?
The ADA is clear. A “Direct Threat” means a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation. The regulations elaborate that employers can implement a Qualification Standard that an individual cannot “pose a direct threat to the health or safety of [themselves] or others.”
So, a business can promulgate a Qualification Standard that its employees cannot post a Direct Threat to the health or safety of themselves or others. The EEOC alludes to the fact that a vaccination requirement is such a safety based Qualification Standard.
Okay…So an Employee Does Not Get the Vaccine Due to a Disability…are they are DIRECT THREAT?
According to the EEOC, that employee could be. If it is found that the employee poses a threat to the safety or health of themselves or their coworkers, then they are a Direct Threat.. The EEOC dictates, “[a] conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
NOTE: The EEOC does not mention that a Direct Threat conclusion would include a determination that an unvaccinated individual would expose themselves to the virus. Remember a Direct Threat can include harm to other and the employee themself.
This Guidance seems to indicate that employees who do not get the vaccine can be considered a Direct Threat to the business.
SO…AN EMPLOYEE DOES NOT GET THE VACCINE DUE TO A DISABILITY…NOW WHAT?
FIRST: Determine Whether the Employee is a Direct Threat.
The analysis as to whether an individual is a Direct Threat must be conducted on a case-by-case basis. The employer must complete the two-step inquiry:
STEP 1: The employer must identify the specific risk posed by the individual.
Here, the inquiry is whether the unvaccinated individual will expose others to COVID-19.
STEP 2: Once the Risk is determined, then the employer must look at the 4 factors of whether the Direct Threat actually exists:
- Duration of the risk;
- Nature and severity of the potential harm;
- Likelihood that the potential harm will occur; and
- The imminence of the potential harm.
NOTE: The federal regulations are clear that these factors must be considered using factual and objective evidence. The regulations explicitly state that employers cannot rely on, “subjective perceptions, irrational fears, patronizing attitudes or stereotypes.”
Employers should consult with counsel when conducting this 4 pronged assessment.
What if an Employee Deemed a Direct Threat? What next?
SECOND: Engage in the Interactive Process
When an employee is deemed to be a Direct Threat, the employer must engage in the interactive process. Employers cannot immediately terminate an employee because they did not obtain the vaccination. The employer must first “determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level.” Employers should consult with counsel for more information on the specifics of the interactive process.
Now, employers cannot terminate an employee unless there is no way to provide a reasonable accommodation that would eliminate or reduce the identified risk. Remember, a reasonable accommodation is one that can be provided without undue hardship. Briefly, undue hardship means significant difficulty or expense. An undue hardship is one that is, “unduly costly, extensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the business.
The EEOC identifies the following factors to be considered when assessing whether an accommodation bears an undue hardship for the business: (1) the prevalence in the workplace of employees who already have received a COVID-19 vaccination and (2) the amount of contacts with others, whose vaccination status could be unknown.”
The EEOC furthers that where an employee does not participate in an employer mandatory vaccination program due to a disability, businesses should treat the employee as if they either (1) had COVID or (2) had COVID symptoms. The EEOC reminds employers that in that scenario (of a COVID diagnosis or symptoms), an employee may be able to telework, or if that is impossible, the employee may be eligible for FFCRA leave, FMLA leave or the employer internal leave policy.
At this juncture, it is questionable as to whether an employee would be eligible for FFCRA leave on the basis that they could not obtain a vaccination due to a disability. Again, employers should consult with counsel on issues relating to vaccination and employees. This is a nuanced issue and additional guidance and rules are anticipated.
ABOUT SUSIE CIRILLI
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
ABOUT OFFIT KURMAN
Offit Kurman is one of the fastest-growing full-service law firms in the United States. With 14 offices in seven states, and the District of Columbia, and growing by 50% in two years through expansions in New York City and Charlotte, North Carolina, Offit Kurman is well-positioned to meet the legal needs of dynamic businesses and the individuals who own and operate them. For over 30 years, we’ve represented privately held companies and families of wealth throughout their business life cycles.
Whatever and wherever your industry, Offit Kurman is the better way to protect your business, preserve your family’s wealth, and resolve your most challenging legal conflicts. At Offit Kurman, we distinguish ourselves by the quality and breadth of our legal services—as well as our unique operational structure, which encourages a culture of collaboration and entrepreneurialism. The same approach that makes our firm attractive to legal practitioners also gives clients access to experienced counsel in every area of the law.
Find out why Offit Kurman is The Better Way to protect your business, your assets and your family by connecting via our Blog, Facebook, Twitter, Instagram, YouTube, and LinkedIn pages. You can also sign up to receive LawMatters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.
DELAWARE | MARYLAND | NEW JERSEY | NEW YORK | NORTH CAROLINA | PENNSYLVANIA | VIRGINIA | WASHINGTON, DC