The Return to Work Dilemma – Employer-Mandated COVID Vaccinations

February 17, 2021 by Walker Lawrence

The distribution of the COVID-19 vaccine is now underway and will become more widely available to the public. Employers are permitted to encourage and even require vaccination before allowing employees to return to work. However, mandatory vaccination policies will require careful planning, training, and transparency to implement effectively and minimize risks.

The Equal Employment Opportunity Commission (EEOC) released new COVID-19 vaccination guidelines providing that an employer may require employees get vaccinated and may administer the vaccine themselves or through a third-party.

Here are some key takeaways from the EEOC’s guidance:

• The CDC strongly recommends that anyone receiving a COVID vaccine answer pre-screening questions. If an employer asks the recommended questions, it is possible the employee’s answers will create obligations under the Americans with Disabilities Act (ADA). For example, the questions may require the employee to disclose any pre-existing medical conditions that may be relevant to administering the vaccine.
• If an employer or its third-party vendor administers the vaccine to employees, any pre-screening questions the employer asks before administering the vaccine must be “job-related and consistent with business necessity.”
• According to the EEOC, to meet this standard, “an employer would need 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 of her or himself or others.”
• An employer can avoid issues that arise from asking pre-screening questions in one of two ways: (1) making the receipt of the vaccine voluntary and giving the employee a choice not to answer the pre-screening questions, or (2) requiring employees to be vaccinated by an unaffiliated third-party (e.g. Walgreens or CVS).
• Employers can require employees to provide proof of receiving a vaccine.
• Employers must consider possible accommodations for employees with disabilities and “sincerely” held religious beliefs.
• If an employer determines that an employee poses a direct threat, the employer must make an individualized assessment to determine if an employee poses a direct threat, considering (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. A direct threat would generally mean an unvaccinated individual “will expose others to the virus at the worksite.”
• Even after determining an individual poses a direct threat, an employer still may not exclude the employee from the workplace (or take any other adverse employment action) unless there is no possible reasonable accommodation “that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat.”

Before deciding whether a mandatory vaccine against Covid-19 is the best choice for your business, it is important to consider the potential risks and discuss them with employment counsel.

Levin Ginsburg is here to help answer any questions you may have about mandated vaccinations or any other employment-related matters. To discuss, please contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, or Joseph A. LaPlaca, an attorney at Levin Ginsburg.