As we enter another year of unprecedented change, the arrival of COVID-19 vaccines is a positive turning point in a public health crisis that has rocked the world and our communities. Now that we’ve reached this promising stage, numerous questions have surfaced from the public over the distribution of the vaccines. While distribution is largely determined on the state level, I’m sharing key information to help educate my clients and behavioral health and social service organizations on the impact vaccine distribution will have from the standpoint of civil rights in the workplace.

Staying abreast of health and safety guidelines is critical, but understanding what an organization can or cannot do from a legal perspective is equally as important. Below are some of the most imperative questions to consider at this time. Knowing full well that there will be more that come up as we continue this vaccine journey, please don’t hesitate to reach out for any additional guidance.

Sean

Vaccines and Discrimination: Top 5 Considerations for Employers

By Sean F. Conaboy, MSW, MPA, Risk Manager, NSM Insurance Brokers

Given the significant impact that the pandemic has had on workplaces, and the rollout of COVID-19 vaccines, your organization might be considering whether to issue mandatory vaccination policies. While the U.S. Equal Employment Opportunity Commission (EEOC) has stated in its updated guidance that employers may be able to require workers to receive the COVID-19 vaccine in certain circumstances without running afoul of key federal anti-discrimination laws, there are still several issues employers will face if they choose to do so. Two such issues are protections for those with disabilities and sincerely held religious practices or beliefs.

To ensure you are familiar with the area of law involving reasonable accommodation for employees who fall into either of these categories to minimize the chances of workplace disputes and litigation, consider these key questions.

For any COVID-19 vaccine that has been approved or authorized by the FDA, is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer the vaccine) a "medical examination" for purpose of the Americans with Disabilities Act?

The vaccination itself is not a medical examination. A medical examination, as defined by the EEOC, is “a procedure or test usually given by a healthcare professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” This includes vision tests; blood, urine and breath analyses; blood pressure screening and cholesterol testing; and diagnostics procedures such as X-rays, CAT scans and MRIs.

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

There are many reasons that may explain why an employee has not been vaccinated, which may or may not be related to a disability. Requesting an employee to provide proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.

If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccine because of a disability?

The ADA permits an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk or substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” (29 C.F.R. 1630.2(r))

Similar to the previous question, what about on the basis of a sincerely held religious practice or belief?

EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices and observances which the employer may or may not be aware of, the employer can typically assume that an employee’s request for religious accommodation is based on sincerely held religious beliefs. Once an employer becomes aware that an employee’s sincerely held religious belief, practice or observance prevents them from receiving the vaccine, the employer must provide a reasonable accommodation for it or observance unless it would pose an “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer.

What happens if an employer cannot classify an employee as being exempt or provide a reasonable accommodation to the employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance and no reasonable accommodation is 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 employee. Employee will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.

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