By Frank A. Custode, Esq.
On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) published revised guidelines regarding COVID-19 vaccination for employees. While the guidelines permit vaccination of employees, there are significant legal issues about which employers should be aware and many potential pitfalls. Here are some key takeaways:
- Employers need to be mindful of pre-screening vaccination questions. EEOC guidance indicates that administration of the COVID-19 vaccine itself is not a “medical examination” which violates the Americans with Disabilities Act (“ADA”). However, employers need to be mindful of pre-screening vaccination questions that may elicit information about any employee disability-related issues. Indeed, employers are limited to pre-screening questions that are “job-related and consistent with business necessity” meaning that “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 the vaccination, will pose a direct threat to the health or safety of her or himself or others.” Exceptions to this requirement are when (1) the employee voluntarily chooses to get the vaccine; or (2) the employee gets the vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.”
- Confidentiality and Health Insurance Portability and Accountability Act (“HIPPA”) Compliance. Employers need to maintain confidentiality about any medical information learned about their employees and should be mindful of compliance with HIPPA.
- Employers may require proof of vaccination. Employers may require proof that their employees received the COVID-19 vaccine without violating civil rights laws or the ADA.
- Disability-Related Concerns of Employees. If an employee declines vaccination due to disability-related concerns, an employer may prohibit an unvaccinated employee from the workplace if the employer can demonstrate the employee “would pose a direct threat due to 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.’” This analysis is conducted on an individualized case-by-case basis utilizing the following factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
- Religious-Related Concerns by Employees. If an employer requires COVID-19 vaccination, the employer must provide reasonable accommodations to employees who are unable to receive the vaccine due to a “sincerely held religious belief, practice or observance,” unless providing such accommodations would pose an undue hardship under Title VII of the Civil Rights Act.
We expect that legal guidance regarding COVID-19 vaccination will continue to be fluid as the vaccination becomes more readily available and anticipate that the EEOC will provide additional guidance in the upcoming months pertaining to COVID-19-related employment law issues. If you are experiencing issues in the workplace due to COVID-19 and/or need guidance on how to navigate COVID-19-related employment law issues, please do not hesitate to contact Curcio Mirzaian Sirot LLC.
* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice Group at Curcio Mirzaian Sirot LLC.