California has begun distribution of COVID-19 vaccines in accordance with a phased administration plan. The next to be vaccinated will be individuals who are high-risk, unable to work at home, live or work in geographic areas that have been highly impacted or are most likely to spread disease to other workers or to the public.
The state has estimated that COVID-19 vaccines will be available to the general public in Spring 2021. Therefore, the time is quickly approaching for employers to make important decisions regarding the administration of the vaccine to employees.
Can employers require the COVID-19 vaccine?
The Equal Employment Opportunity Commission (EEOC) has stated that equal employment opportunity laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidance and suggestions.” However, there are things the employer must consider.
While the vaccination itself is not a medical examination, it does require the employee to answer medical-related questions prior to receiving the vaccination. These questions can constitute “disability-related inquiries” regulated by the Americans with Disabilities Act (ADA). Therefore, if the employer requires the vaccine, it should be administered by a third-party that is not controlled by the employer such as a pharmacy or healthcare provider rather than by the employer directly or by a healthcare provider working under contract for the employer.
Even with third-party administration, employers should have a policy in place that considers workers who have (i) sincerely held religious beliefs protected under Title VII or (ii) medical conditions which make receipt of the vaccine dangerous or otherwise inappropriate for that individual consistent with the reasonable accommodation requirements of the ADA.
Can an employer ask an employee if he or she received the COVID-19 vaccine?
The EEOC has stated that this particular line of questioning does not constitute a “disability-related inquiry” because an employee may choose not to have the vaccine for a variety of reasons wholly unrelated to any medical condition. However, an employer must meet certain requirements if it wishes to discover why an employee has not received the vaccine.
To be clear, questioning the employee about the reasons that individual has not received the vaccine constitutes a “disability-related inquiry” because it has the potential to elicit information about a disability. Therefore, the further inquire can only occur if the question is “job-related and consistent with business necessity” as provided under the ADA.
If an employer requires the COVID-19 vaccine, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
The EEOC has stated, “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, however, 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.”
Can an employer terminate an employee who refuses to be vaccinated?
Employers have a legal obligation to make reasonable accommodations to employees seeking an exemption due to disability-related reasons or religious objections and will need to follow the established reasonable accommodation process under either the ADA, Title VII or the Fair Employment and Housing Act (FEHA) before taking any adverse employment actions.
If there is an accommodation that can be made without undue hardship to the business (i.e. working remotely), then it should be extended to the employee. The EEOC has said, “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.”
Can an employer offer an incentive for employees to get the COVID-19 vaccine?
Many employers have considered offering employees incentives, such as a bonus, gift card or other reward, for providing proof of vaccination. The EEOC has not provided an opinion on this issue but a proposed rule has been submitted and an official ruling is expected in the near future. Generally, providing an incentive is a legal method for employers to encourage vaccination, but several issues should be considered.
First, under the ADA regulations, participation in an employee health program or wellness program that involves disability-related inquiries must be voluntary. 29 CFR § 1630.14(d) (2020). If the incentive is too valuable, it could lead to potential claims that vaccination was not a “voluntary” decision on the part of the employee.
Second, as previously stated, the primary concern is obtaining medical information from employees. If the wellness program requires the employee to disclose medical information to the employer, it will likely violate the ADA unless it is based on a business necessity.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.