If an employer assist in the administration of the vaccine and poses pre-vaccine screening questions, such questions are considered disability-related inquiries that would have to be "job-related and consistent with business necessity." (Photo: Diego M. Radzinschi/ALM)
Now that COVID-19 vaccines are becoming more widely available, many employers are faced with an important decision: whether to require or simply encourage employees to get vaccinated. This decision can be fraught with difficulties if not handled correctly. In advising clients on how best to deal with the vaccine issue, three common mistakes employers make in this area have emerged, any of which could lead to potential liability under the Americans with Disabilities Act (ADA) and similar state laws.
Mike Muskat is a partner at Muskat, Mahony & Devine, a management-side labor and employment law firm in Houston. More information about Muskat, including contact information, can be found at www.m2dlaw.com . 1. Mandating that employees get the vaccine without recognizing exceptions for health conditions and religious beliefs
The Equal Employment Opportunity Commission (EEOC) has made clear that while employers can generally require employees to get vaccinated as a condition of employment, employers should make exceptions for employees who (a) request an accommodation from the vaccine requirement because of a disability or pregnancy, or (b) request to be exempt because of a sincerely held religious belief.
Requests for exemptions necessitate an individual analysis of the risks posed by a particular employee along with the employer's ability to accommodate the request without creating a direct threat or an undue hardship.
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Employers must take care to provide an avenue for employees to raise these types of concerns and then consider them on an individualized basis, consistent with the ADA's interactive dialogue and related requirements for considering requests for accommodation.
2. Participating in administering a vaccine without recognizing the legal perils that come with pre-vaccine medical inquiries.
Most employers that require vaccinations are simply asking workers to obtain a vaccine from a third-party provider, without the employer's involvement. But according to the EEOC, if an employer or a third party with whom the employer contracts assist in the administration of the vaccine and pose pre-vaccine screening questions to employees, such questions are considered disability-related inquiries that would have to be "job-related and consistent with business necessity."
The EEOC explains that to meet this standard, "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 a vaccination, will pose a direct threat to the health and safety of her or himself or others."
Generally, a "direct threat" is 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," such as a remote working arrangement. To make this showing, the employer would likely to have to establish that short of requiring the vaccine, there are no other reasonable methods—such as remote work—to assure that the worker does not pose a threat.
To sidestep these fact-intensive and potentially complicated preliminary questions, it appears that many employers intend to simply require employees to provide proof of vaccination by an unrelated third party.
3. Disclosing employees' vaccination status to those who do not have a business need to know.
While employers are permitted to request and maintain proof of vaccination, or otherwise inquire into an employee's vaccination status, that information should be treated as a confidential medical record and maintained separate from other employment records pertaining to the employee(s) at issue. Such information should be shared only with those who have a business need to know—and not generally with an employee's co-workers or others.
The bottom line for employers
The above issues are just a few of the traps for the unaware when it comes to handling employee COVID-19 vaccinations. Employers should stay abreast of developments in this area and familiarize themselves with EEOC guidance on this issue and consult experienced employment counsel when in doubt.
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