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MANDATING COVID-19 VACCINES IN THE WORKPLACE

August 20, 2021

COVID-19 VACCINES AND THE WORKPLACE

Jon Newman

Hite, Fanning & Honeyman LLP

MANDATING COVID-19 VACCINES IN THE WORKPLACE

As COVID-19 vaccinations became more available, and the dynamics of the pandemic changed, employers are now dealing with issues associated with returning employees.  Employers are considering mandatory vaccinations and related issues.  There are scenarios where employers can mandate that employees get COVID19 vaccinations, but this is dependent on following certain laws, polices, and employees’ legal protections.  Employers must still comply with various complex employment laws.  Some examples of applicable protections are the Americans with Disabilities Act and Title VII and any similar Kansas laws.

On May 28, 2021, the EEOC issued updated guidance regarding workplace COVID-19 vaccination policies and employee accommodations (the “Updated Guidance”).  Subject to compliance with the various legal requirements such as accommodations, the EEOC’s Updated Guidance confirmed employers can enact a mandatory vaccination policy for all of its employees who physically enter the workplace.  This should not violate the laws that the EEOC deals with such as the ADA, Title VII of the Civil Rights Act (“Title VII”), or the Genetic Information Nondiscrimination Act (“GINA”).  There are Kansas equivalate statutory schemes such as the Kansas Act Against Discrimination (KAAD).

However, the EEOC states “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”  A cautious employer with a mandatory vaccine program should periodically evaluate whether its policy disproportionately and negatively impacts employees in protected categories. 

With a mandatory vaccine policy, the law requires reasonable accommodations to employees who cannot get the vaccination due to disability or sincerely held religious beliefs or pregnancy.  Therefore, as in other cases, the employer should perform an individualized assessment regarding possible accommodations when these scenarios occur.  

Sometimes the issue of direct threat is implicated in the ability to accommodate.  A direct threat is a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.  The employer should evaluate the duration of the risk, nature of severity of potential harm, likelihood of harm, and imminence of potential harm, such as whether the unvaccinated employee expose others to the virus at work.

If a direct threat exists, the employer must have an interactive process regarding possible reasonable accommodations absent undue hardship.  If the direct threat cannot be reduced by accommodation, the employer can exclude the employee from the workforce.  An example of accommodation would be performing work remotely.  

As part of a vaccination policy, the EEOC concludes asking for proof of COVID-19 vaccination is not a disability related question.  However, follow up questions might be.  This is  particularly true when follow up questions elicit information about a disability, triggering the requirement that the questions comply with the law, such as the ADA and be “job-related and consistent with business necessity.”  

On July 26, 2021, the U.S. Department of Justice’s Office of Legal Counsel issued an opinion that Emergency Use Authorization status does not prevent public and private employers from imposing vaccine requirements.

The first court to address an employer mandating vaccination allowed a hospital to suspend unvaccinated employees without pay.  The court said in its order that the employees were not forced to be injected with the vaccine.  The court reasoned that the employees had the choice to work elsewhere just as the employer had the choice to require vaccines. Bridges v. Houston Methodist Hospital, No. H-21-1774 (S. D. Tex. June 12, 2021) 

https://www.documentcloud.org/documents/20860668-houston-methodist-lawsuit-order-of-dismissal.

The United States Supreme Court allowed Indiana University to require students to be vaccinated against the coronavirus when It did not accept the case.  Eight students had sued the university, saying the requirement violated their constitutional rights to “bodily integrity, autonomy and medical choice.” But they conceded that exemptions to the requirement — for religious, ethical and medical reasons — “virtually guaranteed” that anyone who sought an exemption would be granted one.  Supreme Court Justice Amy Coney Barrett turned down the students’ request for emergency relief without comment.  

COVID-19 VACCINATION INCENTIVE PROGRAMS

The majority of employers have not enacted mandatory vaccine polices.  Others are adopting incentive programs to increase the number of vaccinated employees.  The EEOC’s updated guidance confirms these programs are acceptable subject to certain requirements.  

Employers may offer incentives both as rewards and penalties, for voluntarily vaccination, if the incentive is not so substantial as to be coercive.  Incentives that are relatively small in the context of employees’ situation are less likely to be coercive versus significantly impactful incentives, effecting job status, pay rate, etc. which run a higher risk. For example, Wells Fargo offers paid time off and Walmart offers $75 in cash and paid time off to those employees that get vaccinated. Some additional examples used by employers have been direct compensation, paid time off, and gift cards to employees who receive vaccinations.  Also, the impact of any payments on wage and hour laws such as the Fair Labor Standards Act, Kansas Wage Payment Act, calculation of overtime, or related issues should be considered.       

The nature of COVID vaccinations and the workplace invariably involves medical information and related inquires.  In vaccination programs administered by the employer or its agent, disability related questions might be asked.  If there is a large incentive tied to that, employees may feel coerced to provide disability related information.  Therefore, employers who themselves administer the COVID-19 shots to employees or those that have contracts with a third-party for vaccine administration should be particularly cautious as to level of incentive.

Employers who have incentive programs for employees voluntarily showing proof of vaccination acquired elsewhere, are at lower risk.  Therefore, according to the EEOC, employers not involved in giving the shots and those that do not contract with third parties to do so, do not have the same limitations on levels of incentives.  The basis is that in those situations, the likelihood of asking disability related questions is much lower.  The EEOC has expressly stated that requesting proof of vaccination is not a disability-related inquiry covered by the ADA and does not run afoul of GINA because the fact that an employee received a vaccination is not protected genetic information.

SINCERELY HELD RELIGIOUS BELIEFS

Another issue where liability can exist involves those employees who should not get the shot because of sincerely held religious beliefs.  Simply disqualifying these classes of employees from the incentive could be discriminatory.  Therefore, employers need to build into their incentive program an alternative mechanism.  

Under Title VII of the Civil Rights Act of 1964 (Title VII), an employer is prohibited from discriminating because of religion in hiring, promotion, discharge, compensation, or other “terms, conditions or privileges” of employment, and also cannot “limit, segregate, or classify” applicants or employees based on religion “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” 42 U.S.C. § 2000e-2(a)(1)-(2).  The statute defines “religion” as including “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate . . . without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).   “Undue hardship” under Title VII is not defined in the statute but has been defined by the Supreme Court as “more than a de minimis cost”.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).   

Title VII requires employers to accommodate those religious beliefs that are “sincerely held.”  Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718 n.18 (N.D. Ill. 2019) (while the validity of a religious belief cannot be questioned, the threshold question of sincerity . . .  must be resolved in every case).  Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many types of Title VII religious claims.  See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (reciting prima facie case for harassment because of religion without reference to inquiry into sincerity of religious belief); Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) (analyzing sincerity of religious belief only with respect to failure-to-accommodate claim, not with respect to discriminatory termination claim).

For example, with respect to an allegation of discriminatory discharge or harassment, it is the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination, that is relevant in determining if the discrimination that occurred was because of religion.  

ACCOMMODATIONS OF ALREADY VACCINATED EMPLOYEES

Sometimes vaccination does not end the ADA analysis.  There are instances where employers have been asked for accommodations by already vaccinated employees.  The issue of accommodations comes up when employees receive requests for accommodations because of an underlying disability that places the employee at higher risk of severe illness from COVID-19 infection.  The EEOC Guidance says requests such as these should be processed like any other accommodation request under the ADA.  Specifically, like other ADA situations, this typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed. 

GATHERED INFORMATION SHOULD BE HELD CONFIDENTIAL

As discussed, EEOC issued guidance clarifying that an employer’s inquiry into an employee’s vaccine status is not a disability-related inquiry under the ADA.  However, the information gathered by the employer may be confidential medical information and any related confidentiality rules should be followed.  When requesting COVID vaccine documentation, employers should advise employees not to provide additional medical information other than the vaccination card evidencing vaccination.  The ADA requires all medical information about a particular employee be stored separately from the employee's personnel file.  An employer may store all medical information related to COVID-19 in existing medical files.  This would include an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.  The employer is supposed to maintain confidentiality of logs of temperature checks.

CONCLUSION 

The COVID-19 pandemic has had and continues to have a dramatic impact in the employment law arena.  There are many factors employers must consider when making employment related decisions, especially in a global pandemic, and employers must remain mindful of the everchanging legal obligations to their employees.  The EEOC and CDC are trying to assist employers by providing much needed guidance to employers on how to remain compliant with federal employment related laws and regulations.  

______________________________

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission, (Updated May 28, 2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 

28 C.F.R. § 35.139.

29 C.F.R. § 1630.14.

COVID-19 Vaccine Incentives, Vaccines.gov, https://www.vaccines.gov/incentives.html (last visited June 10, 2021).  

Id. 

Equal Emp't Opportunity Comm'n, Compliance Manual § 12-IV (January 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.   

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