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COVID-19 Vaccine Q and A for Employers and Employees

By: Mike Meltser, Attorney

The FDA recently authorized two COVID-19 vaccines on an emergency basis. Many employers and employees are wondering how vaccine rollout will impact the workplace. Mize PC has put together this Q and A to answer common questions about employer vaccination policies.

Can employers require that all employees get vaccinated?

Yes.

The EEOC recently issued guidance regarding COVID-19 vaccines in the workplace. The key takeaway is that employers can require employees to get the COVID-19 vaccine as long as employers provide (1) reasonable accommodation to employees with disabilities (as required by the ADA) and (2) employees with religious objections (as required by Title VII).

When can employers require that all employees get vaccinated?

As soon as COVID-19 vaccines becomes widely available. The FDA has approved two vaccines under Emergency Use Authorization (EUA), but there will likely be a limited supply for some time. In addition, the CDC announced there will be a phased distribution of COVID-19 vaccines, with populations eligible for initial vaccination including healthcare personnel, essential workers, adults with high-risk medical conditions, and people 65 years of age and older.

Can employers require proof of COVID-19 vaccination for internal records and records potentially requested by a client?

Generally, yes, but the employer must treat proof of vaccination as a confidential medical record.

If an employee claims a religious exception under Title VII, what options will the employer have?

If an employee has a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine, he or she is protected under Title VII. The employer must provide a reasonable accommodation to the employee unless it would pose an undue hardship. Note that the “undue hardship” standard under Title VII is lower than under the ADA.

If an employee requests a religious accommodation to avoid a COVID-19 vaccine, the employer should ordinarily assume that this is based on a sincerely held religious belief. However, the employer may make a reasonable request for supporting information verifying that the employee does, in fact, have a sincerely held religious belief. Please note that Title VII protections do not extend to nonreligious beliefs, such as political or other personal beliefs.

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.”[1]This is a fairly broad definition that encompasses not only organized religion, but also religious beliefs that are new, uncommon, and not part of a formal church or sect. The EEOC states that the “sincerity” of an employee’s stated religious belief is not usually in dispute.

Per the EEOC, here is a list of factors for an employer to consider when evaluating whether an employee has a sincerely held religious belief:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • Whether the timing of the request renders it suspicious; and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

It is important to remember that an employee’s beliefs may change over time, so an employee’s newly adopted or inconsistently observed religious practice may nonetheless be sincerely held.

Is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party) a “medical examination” for purposes of the ADA?

No.

If an employee claims an exception under the ADA, what options will the employer have?

If the employee has an ADA disability that prevents them from receiving the COVID-19 vaccine, employers must generally provide a reasonable accommodation.

An employer is not required to provide a reasonable accommodation if none is available, the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others that could not be mitigated through the reasonable accommodation.

In its latest guidance, the EEOC provided a four-factor test to determine 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.

The EEOC warns that even if the employer concludes that a direct threat exists, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation. If the employer concludes that a direct threat cannot be reduced to an acceptable level, the employer cannot automatically terminate the employee, but the employer can exclude the employee from physically entering the workplace.

Some possible options that employers may have for a reasonable accommodation include the following:

  • requiring that the employee wear a mask at all times;
  • modifying the employee’s duties to remove any “at-risk activities;”
  • having the employee work remotely, temporarily or permanently transferring the employee to another position; and
  • providing the employee with information about alternative vaccines.

If an employer requires an employee to receive a COVID-19 vaccination from the employer (or a third party), are screening questions considered to be “disability-related inquiries” under the ADA?

Yes.

Because pre-vaccination medical screening questions are likely to elicit information about a disability, these questions are “disability-related” under the ADA. Therefore, if the employer requires employees to receive the vaccine, the employer needs to show that these screening questions are “job-related and consistent with business necessity.”

There are two situations where these screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” standard:

  1. The employer offers the vaccination to employees on a voluntary basis
  2. If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer.

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

No.

Is there a liability issue if an employer requires the COVID-19 vaccine and the employee has a negative reaction to the vaccine? Is this a potential worker’s comp claim?

Possibly.

Under the Texas Labor Code, an insurance carrier is liable for compensation for an employee’s injury without regard to fault or negligence if the injury arises out of and occurs in the course and scope of employment. If an employer requires the vaccine in order to work, it is likely any adverse effect will be subject to workers’ compensation coverage.

Because the vaccine(s) are so new, there may be unknown side effects. If an employee gets a vaccine and suffers side effects, this could support a finding that workers’ compensation applies, as the employee would have gotten the vaccine in the course and scope of employment.

Note that in Texas, as long as the employer does not engage in “gross negligence,” any claims would be paid exclusively through worker’s compensation.

It is also important to note that employers may have a layer of immunity under the Public Readiness and Emergency Preparedness Act (PREP Act). This law allows companies to administer vaccines or provide facilities for vaccine administration. The major benefit of this law is that it grants liability immunity to Covered Persons against any claim of loss “caused by, arising out of, relating to, or resulting from” the distribution, administration, or use of COVID-19 vaccines.

In order to obtain immunity under the PREP Act, the employer must obtain an authorization from the federal government or a state or local health authority in connection with the covered countermeasures (essentially, administering the vaccine). In addition, the employer would need to administer the vaccine as directed. This means that the employer would need to ensure that the vaccine is only administered to the appropriate “population,” as defined by the Secretary of the Department of Health and Human Services.

What else should employers know?

Starting on January 1, 2021, the pandemic relief package recently signed into law removes the requirement for employers to provide Emergency Paid Sick Leave (EPSL) or Expanded Family and Medical Leave (EFML). Through March 30, 2021, employers can still voluntarily offer EPSL or EFML and may utilize the related payroll tax credits.

The new relief package does not modify the qualifying reasons for leave nor the amount of leave to which each employee is entitled (80 hours for EPSL, 12 weeks for EFML).

[1] 42 U.S.C. § 2000e(j).