by Melissa A. Petrofsky
Finally, some good news. There is a vaccine to prevent COVID-19 infections. The COVID-19 vaccines offer a pathway back to normalcy and a booming economy. As the first doses of vaccines are being administered, many employers, cognizant of the vaccines efficacy rates, and a desire to return to their physical workspaces and promote the health of their employees in a manner compliant with applicable law, are considering whether to make vaccination a required condition of employment.
On March 4, 2021, The Department of Fair Employment and Housing (DFEH) issued guidance on the application of Government Code section 12940, et. seq, otherwise known as The Fair Employment and Housing Act (FEHA) regarding mandatory COVID-19 vaccine policies. Department of Fair Employment and Housing, DFEH Employment Information on COVID-19, www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf (last visited March 12, 2021).
This article is intended to assist employers in evaluating and identifying key issues to consider when formulating policies concerning COVID-19 vaccines, as well as inform employees of their rights should their employer adopt such a policy.
Can Employers Require Employees to Get Vaccinated Against COVID-19 as a Condition of Employment?
According to the DFEH, nothing in FEHA necessarily precludes employers from conditioning employment on an employee’s provision of proof of receipt of the COVID-19 vaccine. Id. Additionally, the Equal Opportunity Employment Commission (EEOC) also recognizes that there are no federal anti-discrimination laws that prohibit such a mandate. U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (updated Dec. 16, 2020). However, employers must ensure that, when drafting and implementing mandatory vaccination policies, they do not run afoul of other anti-discrimination laws.
Does Requiring a Vaccination Trigger the Accommodation Process Under the FEHA, ADA, and Title VII of the Civil Rights Act?
Like most things in law, the answer is “maybe.” Employers who wish to enforce mandatory vaccination policies must be prepared to provide reasonable accommodations to employees with disabilities or sincerely held religious beliefs that preclude them from getting inoculated. Only when a reasonable accommodation is unduly burdensome can the employer lawfully exclude these employees from the worksite.
Religious Accommodation Considerations With a Mandatory COVID-19 Vaccination Program
Employers must exempt employees with sincerely held religious beliefs from any mandatory vaccination policy unless the exemption would pose an undue hardship under Title VII of the Civil Rights Act of 1964. The applicability of the exemption depends on whether the employee held a sincere religious belief that would prohibit receiving a vaccination and whether it would cause the employer an undue hardship.
A sincerely held religious belief typically includes any belief rooted in religion. In United States v Ballard, 322 U.S. 78 (1944), the U.S. Supreme Court ruled that employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, the EEOC’s guidance suggests that, in the case of mandatory COVID-19 vaccinations, if the employer “has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance,” such as refusing to be vaccinated, the employer may be “justified in requesting additional supporting information.” The Equal Employment Opportunity Commission, supra. Therefore, if an employer has reason to doubt the sincerity of the purported religious belief, they may be permitted to do an investigation into the belief before accepting it as literal gospel.
An undue hardship is a proposed accommodation that would cause more than a minimal cost or burden on the operations of the employer’s business. U.S. Equal Employment Opportunity Commission, Religious Discrimination, www.eeoc.gov/religious-discrimination (last visited March 12, 2021). According to the EEOC, “an accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
If the employer cannot accommodate a virtual work environment for those seeking a religious exemption to the company’s mandatory vaccine policy, the employer may allow the employee to work on site if, and only if, it is possible for the employee to continue to take precautions, such as continued mask wearing, isolation, and social distancing.
Disability Accommodation Considerations With a Mandatory COVID-19 Vaccination Program
Employees with medical conditions that would preclude the individual from receiving the vaccine should not be forced to do so as a condition of their employment. According to FEHA, employees with physical or mental conditions that affect at least one major system in the body and make it difficult to perform major life activities are entitled to reasonable accommodation for their condition. Cal. Gov’t Code § 12940(m). FEHA defines a “disability” as any physical or mental impairment that limits (makes more difficult) one or more major life activities such as caring for oneself, performing manual tasks, walking, seeing, working, hearing, or speaking. Id.
This includes physical and mental impairments. For instance, if an employee is allergic to one of the ingredients in the vaccine, is pregnant and it is not recommended by the doctor, or has an anxiety condition which has presented itself in paranoia and hypochondria, then the employee might require accommodation.
The EEOC’s guidance makes clear that the employer should engage in an interactive process with the employee to determine the extent to which, if at all, a reasonable accommodation may allow the employee to perform the essential duties of the position without imposing an undue hardship on the employer. U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, supra. A remote work arrangement is a possible reasonable accommodation in such circumstances. Recent months have caused many employers to transition to a remote working arrangement.
An employer may request medical documentation when an individual informs his or her employer that an accommodation is needed. U.S. Equal Employment Opportunity Commission, The ADA: Your Responsibilities as an Employer, www.eeoc.gov/publications/ada-your-responsibilities-employer (last visited March 12, 2021). However, the EEOC has stated that documentation should only be necessary when the disability and need for accommodation are not known or obvious.
Medical documentation should be the best way to balance the concerns of the employer and weeding out employees who are simply concerned about the vaccine and the employees who may legitimately have a physical or mental condition that would prohibit them from being forced to take the vaccine.
Can an Employer Request Proof of Vaccination?
Yes. The EEOC’s guidance explains that requesting proof of having received a vaccination is not a disability-related inquiry so long as the employer does not ask why an employee has not received one. U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, supra. Such questions may elicit information about an employee’s disability and, therefore, may be asked only if they are “job-related and consistent with business necessity.” Id.
With that said, any sensitive health information acquired by an employer, regardless of how it was obtained, must be kept confidential—even if that information is obtained by means other than a disability related inquiry.
Can an Employer Discipline an Employee Who Refuses to Get Vaccinated in Violation of a Mandatory Vaccination Program?
If an employer mandates that employees get the COVID-19 vaccine and an employee refuses to provide proof of vaccination for reasons unrelated to a disability or religious belief, the employer may take corrective action against that individual.
Are Vaccine-Related Injuries Covered by Worker’s Compensation Laws?
Employees who experience an adverse reaction to a vaccine administered pursuant to an employer’s vaccination policy may be entitled to worker’s compensation benefits. California has determined that certain classes of employees, such as first responders and healthcare workers, who test positive for COVID-19 are presumed to have been exposed to the virus while at work for purposes of worker’s compensation claims. California Executive Order N-62-20 (May 6, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf. Individuals who suffer adverse reactions from the vaccine may also obtain worker’s compensation coverage, especially if the vaccine is administered pursuant to an employer’s mandatory vaccination policy. Additionally, in jurisdictions extending paid sick leave, employees may take job-protected leave under those statutes for time away from work due to adverse reactions from the vaccine.
What Is the Standard for Determining Whether an Unvaccinated Employee Poses a Direct Threat to Others in the Workplace?
Employers are under a duty to implement policies and practices that ensure workplace safety for employees. But under FEHA and the ADA, an employer may exclude an employee from the workplace for medical reasons only if their condition poses a “direct threat” to themselves or others.
To show that an unvaccinated employee would pose a direct threat, the employer “[must have] a reasonable belief, based on objective evidence,” that an employee who does not receive a vaccine 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.” 29 C.F.R. 1630.2(r). This, in turn, requires an individualized assessment of four factors: (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.
Employers are under a duty to apply this test on an individual basis, which means that an employer’s decision may depend upon a specific employee’s job duties. Moreover, any conclusion that a direct threat exists will also require, as per the EEOC guidance, “a determination that an unvaccinated individual will expose others to the virus at the worksite.”
Notably, the direct threat determination will change over time as the COVID-19 vaccines become more readily available to the general public. Under the EEOC’s guidance, “[t]he prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.” Thus, as a greater proportion of the workforce becomes resistant to COVID-19 (either through vaccination or prior exposure), there may come a time when a single unvaccinated employee in the workplace does not pose a direct threat to others in the workplace.
Are Waivers Permissible and/or Enforceable?
Employers may ask employees to sign acknowledgments indicating that they understand the medical risks of their decision—whether to get the vaccine or not—and they accept the risks of that decision. Such agreements have not yet been tested, and many states may find that they are not enforceable as a matter of public policy—especially where an employer may be attempting to disclaim liability under a mandatory vaccination program. That said, employers may instead elect to provide employees with detailed disclosures and notices concerning the risks attendant to remaining unvaccinated as a way to incentivize inoculation.
Conclusion
With these issues in mind, employers should ensure their own familiarity with the area of law involving reasonable accommodations and consult counsel when formulating new vaccine policies.
Melissa A. Petrofsky is a small business and employment law attorney and a Director at Large of the OCBA Board of Directors. She serves on the OCBA’s COVID-19 Task Force and has been assisting small businesses throughout the pandemic. She can be reached at The Petrofsky Law Firm at melissa@petrofskyfirm.com.