NAVIGATING THE COVID-19 VACCINE FROM AN EMPLOYER PERSPECTIVE

Posted: January 28, 2021 | News

COVID-19 vaccines are becoming more readily available, which means that employers may be wondering whether they have the ability to mandate that their employees receive the vaccine. Last month, the U.S. Equal Employment Opportunity Commission (EEOC) weighed in on this question. The EEOC’s guidance can be found here. Without answering the question directly, the EEOC appears to approve of an employer’s ability to mandate the vaccine. This is consistent with the EEOC’s past guidance on the ability of an employer to require employees to be vaccinated against the flu. The California Department of Fair Employment and Housing (DFEH) has not yet provided guidance on COVID-19 vaccines, but it is anticipated to follow the guidance of the EEOC.

An employer may decide that it will require its employees to receive a COVID-19 vaccination, as long as it is related to the employee’s job and consistent with the employer’s business necessity. If an employer requires its employees to be vaccinated against COVID-19, it must be prepared to show that an unvaccinated employee will pose 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.”

According to the EEOC, the employer must conduct an individualized assessment of four factors in determining whether a direct threat exists:  (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 conclusion that there is a direct threat would include a determination that an unvaccinated employee will expose others to the virus at the worksite.

If the threshold is met and an employee refuses the vaccine, the employer must then engage in the same interactive process that would occur if an employee requested any other accommodation under the Fair Employment and Housing Act (FEHA) or the Americans With Disabilities Act (ADA). The interactive process should identify whether there is a reasonable accommodation that would allow the employee to continue to perform the essential functions of the job, without posing an undue hardship to the employer. If the employee is requesting an accommodation for a sincerely held religious belief, practice, or observance, the employer is required to engage in a similar interactive process. Considerations include whether the employee can perform the work remotely or whether there is a way to reduce the risk in another way that does not result in an undue hardship to the employer. The employer should evaluate the four factors identified by the EEOC above as part of its evaluation process.

If the employer determines that an employee cannot be vaccinated and that this poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat the employer can exclude the employee from physically entering the workplace, but this does not mean that the employer may automatically terminate the employee. The employer must determine, for example, whether the employee can perform the work remotely.

If employers obtain information about an employee’s medical condition, for example to learn whether there is a medical reason that would prevent the employee from receiving the vaccine, the information is subject to the confidentiality standards imposed by state and federal law related to disability-related inquiries. Any information collected by an employer during the interactive process will need to be treated as confidential.

Employers will undoubtedly be placed in a difficult position because they are required to provide a safe workplace for all employees, while at the same time provide a reasonable accommodation (if it does not pose an undue hardship) to those who may have a legally supportable reason not to receive the COVID-19 vaccine. Some have raised the specter of risk to employers who require employees to receive the vaccine, and what that might mean if complications arise.

Employers will also have to consider whether any wage and hour laws are impacted when implementing a COVID-19 vaccination program, such as reimbursing employees for time spent receiving the vaccine, if required by the employer.

Before requiring employees to be inoculated against COVID-19, or terminating or taking other disciplinary action against an employee who refuses to be vaccinated, employers will be wise to check with competent employment counsel who can help navigate this new frontier.  It is also recommended that employers who choose to develop a COVID-19 vaccination plan, update their written policies to address their COVID-19 vaccination protocols and employees’ rights under state and federal law.

This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.

Colleen M. McCarthy

Colleen M. McCarthy, Esq. is a Partner and chairs the Firm’s Employment Practices Group. She has dedicated her practice to representing and protecting employers, with a particular emphasis on risk mitigation through preventative counseling and sound practical advice. For over 20 years, Colleen McCarthy has counseled employers about the complicated employment laws that impact their businesses to ensure that they are in compliance, and to reduce the chance of costly litigation. Colleen McCarthy may be reached by phone at (949) 608-6900 or email cmccarthy@ferruzzo.com.