Now that at least two COVID-19 vaccines have been made available, all employers, including AAMP members, must consider the various issues involved in deciding whether to make vaccination mandatory for their employees.
On December 16, 2020, the Equal Opportunity Commission (EEOC) updated its previous COVID-19 guidance to address the vaccine and the workplace. While not being explicit, the EEOC implied that making vaccination mandatory for all employees entering the workplace would be permissible under the Americans with Disabilities Act (ADA) and other laws administered by the federal agency. The only condition mentioned was that employers must properly respond to requests for exemption from mandatory vaccination, based upon a disability or a religion-based objection. Further guidance is likely to be provided, but for now, an employer’s obligations are fairly clear.
Where an employee’s request for exemption is based upon a disability, the employer must determine whether permitting the unvaccinated employee to enter the workplace could create a “direct threat.” A “direct threat” is defined as a significant risk of substantial harm to the employee or others in the workplace. If there is such a threat, the employer must consider whether “reasonable accommodation” could be made that would effectively reduce or eliminate the risk.
In the case of a request for exemption based upon the religious protections of Title VII of the Civil Rights Act of 1964, the analysis and standard applied are similar but not the same as for a disability-based exemption request. Where the employee refuses to be vaccinated because of their religious beliefs, the employer must also consider whether a “reasonable accommodation” could be made that would permit the unvaccinated employee to be present in the workplace without creating an “undue hardship” on the operation. It should also be noted that most states have similar laws protecting individuals with disabilities as well as protections for a person’s religious beliefs and practices. Neither federal nor state law would permit an employee to refuse vaccination based purely on personal opposition to vaccines in general.
Due to the highly infectious nature of COVID-19 and the work environment in a meat processing operation, with workstations relatively close to each other, the presence of an unvaccinated person would almost certainly create a “direct threat,” as well as impose an “undue hardship” on the operation. An unvaccinated individual would pose a significant risk of exposure, even with the masking and social distancing protocols in place. The risk would be exacerbated in most AAMP members’ facilities because of the flow of customers through their retail operations. Neither fellow employees nor unsuspecting customers should be exposed to such a risk.
An additional issue that employers must address is whether to administer the vaccinations themselves through a third-party medical provider or to require employees to obtain vaccinations independently. When the employer provides the vaccinations, even through a third party, it must satisfy a higher legal standard. That standard becomes relevant because to determine whether an employee has a disability that might prevent vaccination, the health care provider must ask screening questions that would constitute “disability-related inquiries” under the ADA. Such questions may only be asked if they are “job-related” and consistent with business necessity.” The questions would meet that legal standard if failure to be vaccinated would pose a direct threat to the health and safety of the employee and others in the workplace. Given the infectious nature and serious consequences attendant to COVID-19, such a failure would pose a threat to the workplace. If employees are required to obtain vaccinations on their own, the employer would be uninvolved and would not have any role in the screening questions.
In circumstances where the employer decides to have employees obtain vaccinations independently, please note that some states require employers to reimburse their employees for any out-of-pocket costs. Also, under the federal Fair Labor Standards Act (FLSA) and similar state wage and hour laws, employers must pay for the time required to obtain their vaccination, including travel time. Also, since the records of who received a vaccination and when is medical information, the records must be retained in the employee’s confidential medical file.
The final issue that bears some discussion is how to deal with the employees that cannot be vaccinated due to a disability or will not be vaccinated due to their religious beliefs. In neither case should the employee be automatically terminated? Employers should consider whether other options are available. Unfortunately, because of the serious concerns regarding the protection of employees, as well as customers in most cases, no alternative job may be available for an unvaccinated employee. If there is a leave policy that could be used for long-term leave, that might be a suitable option. However, if extended leave is provided when it has never been provided before, setting such a precedent could require similar leave for an employee in different circumstances in the future.
The guidance from the EEOC and other governmental agencies is certain to be updated as the vaccination process progresses. Watch carefully for future developments.