The new year brings hope as the first inoculations of the COVID-19 vaccine were recently distributed among healthcare workers. Many business owners are already planning to evaluate their vaccine policy and the practical implications of the policy rollout. Whether they should require their employees to receive the vaccine or not, it is not too late to start thinking about potential compliance ramifications.

Through this blog we plan to address some concerns that are top of mind with small and medium size business (SMB) owners.

On December 16, the Equal Employment Opportunity Commission (EEOC) became the first agency to weigh in on vaccines and employment related issues. To date, we are not aware of any states or localities that have issued similar guidance.

The EEOC stated that administering a federally authorized coronavirus vaccine (such as the Pfizer or Moderna vaccines) is not a "medical examination" for purposes of the Americans with Disabilities Act (ADA). This is important because the ADA prohibits employers from conducting mandatory medical examinations of employees unless they are "job-related and consistent with business necessity." According to the recent EEOC guidance, and indeed historic practice of the EEOC, employers generally may require that employees get vaccinated, as long as the vaccination is “job-related and consistent with business necessity.”

Vaccine Screening Questions

Employers that require an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. These types of questions are called vaccine screening questions, which are potentially problematic because in providing an answer, a person may provide information about a disability, such as a health condition that compromises their immune system. Vaccine screening questions that may elicit information about a disability are allowed without needing to satisfy the “job-related and consistent with business necessity” requirement only if:

The employer has offered a vaccination to employees on a voluntary basis (which also means the employee’s decision to answer any vaccine screening questions are also voluntary); or
An employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider

To meet the “job-related and consistent with business necessity” requirement, an employer needs to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety to themselves or others (see below for more information on what constitutes a “direct threat”).

Keep in mind that an employer that mandates vaccination for some or all of its employees will need to satisfy the “job-related and consistent with business necessity” requirement when asking vaccine screening questions to those employees. For example, a medical clinic that requires its healthcare providers to vaccinate and asks why an employee is refusing to vaccinate must show that the question is “job-related and consistent with business necessity.”

Requesting Proof of Vaccination

Employers may request proof of vaccination because simply requesting 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. It would be best practice to, when asking the employee for proof, to remind the employee that you only need to see the proof, nothing more that might indicate the employee’s general health or other medical information.

Potential Accommodations for Employees Who Cannot Be Vaccinated Due to a Disability

If 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 to themselves or to other individuals at the workplace, such as coworkers or customers, due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation" before excluding the employee from the workplace.

According to EEOC, employers should evaluate four factors to determine 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
The imminence of the potential harm

Employers and employees should work together to determine whether a reasonable accommodation can be made for employees who cannot be vaccinated. Employers should also evaluate:

The employee's job functions
Whether there is an alternative job that the employee could do that would make vaccination less critical
How important it is to the employer's operations that the employee be vaccinated

Employers must also decide whether a reasonable accommodation would pose an undue burden, which means the employer would incur significant difficulty or expense in providing the reasonable accommodation. As examples, it may be significantly more difficult during the pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking, or it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. Employers may only deny reasonable accommodation requests if they cause an undue burden on the employer.

It will likely be difficult for an employer to show undue burden or a direct threat if alternatives are available, such as a work-from-home option, moving the employee to a segregated area, or requiring everyone to wear personal protective equipment (PPE).

What to Consider When Employees Decline to Be Vaccinated Due to Their Religious Beliefs

Additionally, employers must provide a reasonable accommodation to employees who decline to get vaccinated due to a sincerely held religious belief, practice or observance - unless doing so would pose an undue hardship under Title VII of the Civil Rights Act (which requires religious belief accommodation), which has been defined as more than a de minimis cost or burden on the employer. If no reasonable accommodation is possible, the employer may exclude the employee from the workplace, but not necessarily terminate them.

The EEOC states that employers "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.”
However, employers can request supporting information if they have “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance.”

We recently hosted a webinar to provide additional insight on the new COVID-19 stimulus package and its impact on SMBs. You can watch the recording here.

In the meantime, you can visit the TriNet COVID-19 Preparedness Center for critical and up-to-date information as well as the impact of changing regulations on small and medium size businesses. We continue to monitor the COVID-19 situation and provide updates as necessary.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

This post may contain hyperlinks to websites operated by parties other than TriNet. Such hyperlinks are provided for reference only. TriNet does not control such web sites and is not responsible for their content. Inclusion of such hyperlinks on TriNet.com does not necessarily imply any endorsement of the material on such websites or association with their operators.

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