Pub. 2 2020 Issue 6

AT LAST, A VACCINE! WHAT DOES IT MEAN FOR EMPLOYERS? BY ABBEY MOLAND, MCGRATH NORTH With the FDA’s issuance of an Emergency Use Authorization (EUA) of a COVID-19 vaccine on December 11, many U.S. employers, eager to safely transition employees back to work or transition workplaces back to normal, are considering implementing vaccine recommendations or mandates in the workplace. The f luidity of the pandemic has yielded yet another decision point for employers: Can employees be required to obtain a COVID-19 vaccine as a condition of employment? At this point, the answer is generally, yes—although there are a number of caveats, open questions, and policy decisions to keep in mind as vaccines become more widely available and federal, state, and local agencies and corresponding legal issues continue to morph and take shape. Here is a look at some of the employment- related considerations with mandating a COVID-19 vaccine in the workplace. Equal Employment Opportunity Commission (EEOC) While the EEOC has not yet issued guidance specific to the COVID-19 vaccine, it has been down a similar road before. In response to the 2009 H1N1 (aka, swine f lu), the EEOC published guidance called “Pandemic Preparedness for the Workplace.” As part of this older guidance, the EEOC concluded that even during a pandemic, employers have an obligation to consider exemptions for a vaccine mandate based on disabilities (under the Americans with Disabilities Act, or ADA) and religion (under Title VII of the 1964 Civil Rights Act, or Title VII). This same framework will likely apply to COVID-19 vaccine mandates. Under the ADA, vaccinations are considered medical exams and in order to be made a mandatory condition of employment, they must be job related and consistent with business necessity or be necessitated by a direct threat in the workplace. While the EEOC has not addressed COVID-19 vaccines directly, guidance on COVID-19 testing issued in May 2020 indicates that COVID-19 presents a “direct threat” in the workplace; therefore, more extensive medical inquiries and controls can be implemented under the ADA. This guidance made clear that employers could perform certain COVID-19 testing (i.e., molecular tests, but not antibody tests) of employees without violating the ADA. Notwithstanding the EEOC’s recognition of COVID-19 as a direct threat in the workplace, the ADA would still provide employees the ability to request an exemption from the vaccine as a reasonable accommodation if a disability prevents that employee from getting the vaccine. An employer is not required to provide a reasonable accommodation, however, if none is available, or if 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. Both the reasonable accommodat ion and undue hardship components of theADAanalysis hinge on individual circumstances related to things like the nature of the employee’s disability, the work conditions, and the ability to mitigate potential hazards through job modifications such as increased social distancing, PPE, telework, etc. Employees working in high-risk environments or with high-risk populations (i.e., food service and food processing, healthcare, nursing homes, and schools) may have fewer opt ions for accommodating vaccine exemptions, especially given the risk surrounding the efficacy of PPE measures in industries requiring constant exposure and face-to-face close contact. Similar to the ADA, Title VII mandates that employers who plan to require a vaccine also provide an exemption where the employee maintains a “sincerely held religious belief” or observance that prevents them from taking the vaccine. This standard is fairly broad and encompasses more than traditional organized religions, but the protection would not extend to employees who seek an exemption due to political beliefs, personal objections to vaccinations, or safety-related concerns with the vaccine. N O V E M B E R / D E C E M B E R 2 0 2 0 26 nebraska cpas