Over the past year, employers have faced complex challenges in providing their products or services while protecting their employees from COVID-19s in the workplace. Employers made quick decisions to transfer their staff to remote work or reconfigure their workspace for key employees to limit the spread of the pandemic. With the distribution of COVID-19 vaccines underway, employers are facing a new challenge – the policy to be implemented when moving towards a new normal business, whether continued virtual, hybrid or fully office-based operations.
A crucial question for many employers' minds is whether they can implement a policy that requires employees to receive a COVID-19 vaccination before returning to the workplace in light of the limitations of the U.S. Disability Act (ADA) regarding medical examinations. The Equal Employment Opportunity Commission (EEOC) addressed this issue in guidance issued on 1
Vaccines and health checks are generally considered medical examinations subject to ADA restrictions, but the latest EEOC guidance states that employers can require employees to receive the COVID-19 vaccine before returning to the workplace, without triggering ADA restrictions, subject to certain conditions.
According to the guidelines, COVID-19 vaccinations are not medical examinations for ADA purposes. since the purpose of requiring an employee to be vaccinated is to protect the employee from coming into contact with COVID-19, not to learn anything about the employee's health or disability. However, there are scenarios that employers need to understand when implementing a mandatory COVID-19 vaccine policy in order for their workforce to meet ADA requirements.
ADA Restrictions to Consider Whether to Require the COVID-19 Vaccine
While employers may require their employees to receive the vaccine, there are scenarios where ADA restrictions may come into play. The EEOC guidelines explain that the necessary questions about the preliminary examination of vaccination can trigger ADA restrictions for questions about disability if the questions are likely to provide information about the employee's health or disability. Because of this potential issue, employers should consider using a third party provider with whom the employer does not have a contract, to administer the vaccinations and avoid this problem.
Employers may also consider allowing employees to receive the required vaccination independently through their caregiver and provide evidence of vaccination to the employer. The evidence may take the form of something as simple as a note from their doctor, but employers should make sure that the policy makes it clear that the evidence must not contain any medical information. Receiving forms with medical information can potentially trigger problems with ADA compliance for the employer.
Employers should keep in mind that employees may request to be exempted from the vaccination requirement as a resident under the ADA or a religious resident under Title VII of the Civil Code. The Rights Act of 1964 (Title VII). According to the EEOC guidelines, employers in these situations must participate in the interactive process in order to try to find a reasonable approach that would not be unnecessarily difficult for the employer, as they would have to do in other situations where an employee requests a
For example. it would be a reasonable approach to allow an employee who cannot be vaccinated for medical or religious reasons to continue working remotely. Another option could be to let them work in an area separate from other employees and use precautions to reduce the spread of the virus.
What happens if an agreement on a reasonable home cannot be reached?
If the employer and the employee cannot agree on a place to live, then the employer must perform an analysis to determine if the employee would pose a direct threat to employees, as defined in the ADA, if they returned to the workplace without receiving a vaccination. The EEOC recommends in the guidance that employers look at four factors to determine if there is a direct threat.
Employers must consider:
- The duration of the risk;
- The nature and severity of the potential damage;  The probability of injury; and
- The imminent damage.
For example, the duration of the risk would be driven by how long the employee is in contact with other employees or customers. The answer to this question will vary depending on the job and role. A cashier who works in a grocery store, for example, has regular and direct contact with customers and employees, while a truck driver in a warehouse may have significantly less direct contact with other people for shorter periods.
If, after considering all four factors in the particular situation, the employer decides that the unvaccinated employee will expose other employees to the COVID-19 virus, then the employer may refuse to allow the employee to enter the workplace. However, the EEOC guidelines clearly state that this does not mean that the employee should be subject to dismissal at this time. Instead, the guide advises employers to review all other applicable federal, state, and local laws to determine if the employee has other rights outside the ADA context.
When an employee has no basis for claiming an exemption under the ADA or the title. VII
What happens if an employee refuses to meet the vaccination requirement but has no reason to request an exemption under the ADA or Title VII? If the employee refuses to be vaccinated for a reason not protected by the ADA or Title VII, such as a fear that the vaccine may have harmful side effects, the protection and requirements of the ADA discussed above will not be triggered. In that situation, the employer would need to look at other potentially applicable laws to determine how to proceed.
Other Considerations When Planning to Return to the Office
While employers would be wise to start considering their policies and understand the legal requirements for such policies, all of the above issues are heavy until the vaccines are readily available and available to a wider population and a spectrum of employees.
Finally, remember that the above information only looks at the small disc of issues related to the interaction between the ADA and a mandatory vaccination policy. There are many other issues for employers to explore as they consider taking the next step toward a new standard.
For example, how will employers decide which employees are to be classified as significant and required to return to the workplace and who is allowed to continue working remotely? What measures will employers need to take to avoid discriminatory treatment of employees who do not agree to be placed in one group or the other?
I will be looking at a few more of these issues in future blog posts in addition to presenting my colleague Angie Brown at the Virtual DMEC Compliance Conference in March. We will delve deeper into how we handle housing inquiries as we consider returning to the workplace, including inquiries related to the COVID-19 vaccine. You can register for the DMEC Compliance Conference here.
One thing is for sure, understanding how we need to meet employees' work demands and needs has become more complicated in a world after COVID. Are you asking the right question to be ready for that world? If not, we would like to have a conversation about how we help insurers and employers every day to navigate the increasing complexity of the workplace.
The content of this blog is offered only as a public service to the web community and does not constitute solicitation or legal advice. You should always consult a qualified solicitor regarding specific legal issues or cases.