EEOC Has Issued Guidance on How Employers Can Manage ADA

and Title VII Issues When Requiring Mandatory Vaccinations for Employees

As California approaches an economic reopening following declining COVID-19 test positivity rates and rapid increases in the vaccinated population, many workplaces are implementing or considering a requirement for their employees to be vaccinated. While vaccine mandates have long been commonplace for schoolchildren and medical workers, employers should be aware of how to navigate situations involving employees citing a disability or religious grounds as a reason for not conforming to such a requirement.

On December 16, 2020, the federal Equal Employment Opportunity Commission (EEOC) issued guidance for applying the standards of the Americans with Disabilities Act (ADA), which permits employers to require employees to get vaccinations with certain exceptions that may allow certain employees to opt-out of such a requirement. An employer’s ability to implement such a requirement arises from its right to exclude any individual from the workplace who poses a direct threat to the health or safety of individuals in the workplace, such as an employee who is infected with COVID-19. According to the EEOC, this right allows employers to require a vaccination on a non-discriminatory basis without violating the ADA or any other anti-discrimination statutes.

Nevertheless, employers are advised to exercise caution in implementing not to inadvertently screen out individuals with disabilities and ensure that their vaccination requirement constitutes a threat-based standard. To determine whether a policy is threat-based, employers can conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. 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. 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 to the employer) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, maybe eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (e.g., significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, https://askjan.org/. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Employers should remind all managers and supervisors that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

If an employer is administering its own vaccination program, they may ask employees medical-related questions that could prompt the disclosure of information pertaining to a disability, so long as the nature of the questions is job-related and consistent with business necessity. All information obtained from employees through such a program would be deemed a confidential medical record.

Some employers may, in hopes of avoiding disability and religious-related accommodation analyses, merely encourage vaccination. If employers offer incentives to employees to get vaccinated (e.g., paid time off, gift cards, other prizes, etc.) accommodations may need to be made for employees who are not eligible for the incentive due to a disability or religious belief that prevents them from receiving the vaccine.

Even without requiring employees to be vaccinated, an employer is allowed to request or require evidence as to whether an employee has received the vaccine. The EEOC has made clear that this does not constitute an impermissible

The following are some of the situations that may arise, in which an employee may qualify under an exception to opt-out of an employer’s lawful vaccination requirement:

What if an employee asserts he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. Mere suspicion, distrust, or anxiety surrounding the vaccine does not fall into this category and would not trigger an employer’s obligation to provide a reasonable accommodation.

What if an employer cannot exempt or provide reasonable accommodation to an employee seeking to opt-out based on a disability or religious belief without presenting a direct threat to the health and safety of others in the workplace?

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

The attorneys at Thakur Law Firm, APC are knowledgeable and experienced in all varieties of state and federal anti-discrimination laws, as well as new laws relating to COVID-19 and how they impact California employers. If you have an employment law issue or need advice regarding COVID-19 vaccinations, we encourage you to contact Thakur Law Firm today for immediate assistance in developing practical and effective solutions that are specially tailored to your situation.