Pub. 3 2021 issue 1

6 At Last, a Vaccine! What Does It Mean for Employers? Abbey Moland W ith the FDA’s issuance of an Emergency Use Authorization (EUA) for multiple COVID-19 vaccines and vaccines becoming more widely available, 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 fluidity 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. 1. Equal Employment Opportunity Commission (EEOC) On Dec. 16, 2020, the U.S. EEOC issued a revised version of its ongoing COVID-19 guidance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” addressing questions related to the administration of COVID-19 vaccinations in an employment context. The new information, outlined in Section K of the publication, clarifies that employers may require, as a condition of employment, that employees receive the COVID-19 vaccine. However, there are many open questions and significant legal issues for employers to consider under the EEOC’s guidance. Some key takeaways for employers from the updated EEOC guidance include: (a) The COVID-19 Vaccine is NOT a medical exam under the Americans with Disabilities Act (ADA) First, the EEOC’s guidance clarifies that the vaccine itself is NOT a medical exam. Under the ADA, “medical exams,” which are a condition of employment, must be job related and consistent with business necessity or be necessitated by a direct threat in the workplace. The EEOC stated that by simply administering a COVID-19 vaccine, employers would not be seeking medical information from the employee, and thus this would not rise to the level of a “medical exam” under the ADA. (b) Prescreening Vaccination Questions MAY Implicate the ADA For employers who choose to implement a mandatory vaccine requirement, the EEOC guidance provides some additional cautions related to prescreening questions (which are recommended by the CDC prior to administering a COVID-19 vaccine). In order to pass muster under the ADA, the prescreening questions must be “job-related and consistent with business necessity,” and to meet this standard, employers will need to have a “reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” In assessing whether there is a “direct threat,” the EEOC advises employers to conduct an individualized assessment in taking into considerations the following 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. The EEOC makes clear that the concerns about the prescreening questions will not implicate the ADA where (1) an employer has offered a vaccine on a voluntary basis (i.e., employees choose whether to be vaccinated), which would mean that an employee’s refusal to answer the questions would only mean the employer could refuse to administer the vaccine; or (2) an employee receives an employer-required vaccine from a third party that does not have a contract with the employer (i.e., a pharmacy, broker or other health care provider), the ADA would not apply to prescreening questions. (c) Confidentiality Issues The EEOC also makes clear that the prescreening questions (whether voluntary or mandatory) and the responses to