Equal Employment Opportunity Commission (EEOC) guidance has confirmed employers may require a COVID-19 vaccination as a condition of employment and/or to return to the workplace. Employers that choose to do so, however, need to be careful about how they implement the vaccine requirements.
Who Will Administer Vaccine?
Under the EEOC’s guidance, administering the COVID-19 vaccine or asking whether an employee has been vaccinated isn’t by itself a medical examination or a disability-related inquiry under the Americans with Disabilities Act (ADA).
The U.S. Centers for Disease Control and Prevention (CDC), however, requires healthcare providers to ask certain prescreening questions before administering the vaccine to ensure there’s no medical reason that would prevent an individual from being vaccinated. The prescreening questions may violate the ADA by eliciting an employee’s disability-related information.
You can avoid the ADA restriction by (1) leaving it to employees to get their shots from a public or private entity and (2) simply asking them to provide proof of vaccination. You should obtain no more than the vaccination certification from employees. Don’t ask for or accept any other medical information.
If you choose to administer a mandatory vaccine at your own facilities, you will be responsible for showing the prescreening questions are “job-related and consistent with business necessity.”
Where the vaccine is offered in-house on a voluntary basis, you or your contractor may ask prescreening, disability-related questions without having to show business necessity if the employee’s decision to answer them is voluntary. If employees choose not to answer, you may decline to administer the vaccine but must not retaliate against, intimidate, or threaten them for refusing to reply.
What If Employees Refuse to Be Vaccinated?
In general, you may terminate at-will employees who refuse to comply with a mandatory vaccine requirement. First, however, be sure you clearly communicate:
- Information about the mandatory vaccine policy;
- How to request an exemption and the deadline for doing so;
- Date by which they must receive the vaccine; and
- Any ramifications for failing to get the shots.
Additionally, unionized employers may be required to bargain over the implementation of a mandatory vaccine policy depending on the terms of the labor contract.
On the other hand, under the ADA and Title VII of the Civil Rights Act of 1964, you must grant an exemption from any mandatory vaccine policy to employees who can’t receive it because of a disability, pregnancy, or a sincerely held religious belief. You must engage in a flexible, interactive process with exempt employees to identify whether you can provide them with a reasonable accommodation without causing an “undue hardship.”
To prove an undue hardship under the ADA, you must show you will suffer significant difficulty or expense to accommodate the employee. Under Title VII, you must show only a minor cost to avoid the accommodation requirement.
Regardless, employers that operated remotely or implemented social distancing, mask, and enhanced cleaning protocols during the COVID-19 pandemic will be hard-pressed to show the same alternatives are no longer feasible accommodations for exempt employees.
What if Employees Suffer Serious Side Effects From Vaccine?
Employees whose employers mandate vaccinations may have a workers’ compensation claim if they suffer a severe reaction from the vaccine. Additionally, under the American Rescue Plan Act (ARPA), employers with fewer than 500 employees that voluntarily provide paid leave will be eligible to receive a refundable tax credit. The ARPA added obtaining the vaccine and recovering from its side effects to the reasons you can provide paid leave to employees through either emergency paid sick leave or emergency family medical leave.
Alternatively, you can encourage, rather than mandate, vaccinations through incentives, such as a bonus. Any incentives should be clearly defined in your vaccine policy.
How to Manage Workplace After Vaccinations
Until information exists on how the vaccines will reduce transmission of COVID-19 and how long protection the lasts, and the Michigan Occupational Safety and Health Administration (MIOSHA) emergency rules expire or are modified, you must continue to adhere to social distancing, mask, and quarantining protocols. For additional information, see “COVID-19 safeguards still apply to vaccinated employees in Michigan” in our May 2021 issue.
Alexander J. Burridge is an attorney with Bodman PLC’s workplace law practice group in Detroit, Michigan. You can reach him at aburridge@bodmanlaw.com.