COVID-19 vaccines are in limited supply. Washington State is currently in Phase 1B, Tier 1 of its COVID-19 vaccine allocation. As production of the vaccines continues, employers have become interested in their ability to require their staff to become vaccinated.
To understand its ability to require vaccinations, an employer needs to assess the risk posed by each of their employees. An employee may only be required to become vaccinated if that employee would otherwise pose a direct threat to the health and safety of individuals in the workplace or the public. Even if an employee posed a direct threat, the employer may need to provide reasonable accommodations in the case of a disability or sincerely held religious belief.
A voluntary (rather than mandatory) vaccination policy is easier to administer and avoids various legal and logistical hurdles. With a voluntary vaccination policy, employers can encourage and incentivize employees to be vaccinated, for instance, by allowing employees to take leave to get vaccinated, paying for the cost of the vaccination, and/or granting additional sick leave to any employee who may suffer side effects from the vaccination.
Recent EEOC Guidance
On December 16, 2020, the EEOC advised that the Americans with Disabilities Act (“ADA”) allows employers to have a qualification standard for employment that includes a “requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” However, if a safety-based standard, such as a vaccination, would exclude or tend to exclude an individual with a disability, the employer must show that an unvaccinated 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.”
The EEOC advised that employers must conduct an individualized assessment of four factors in determining whether a direct threat exists that an unvaccinated person will expose others to the virus at the worksite: (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. “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
Unvaccinated Employees Posing a Direct Threat
Given the immediate and significant threat posed by COVID-19 for the near future, employers should pay particular attention to the likelihood of infection and spread of COVID-19. The more likely the possibility that nonvaccinated employees will put coworkers and the public at risk, the more compelling the case for a vaccination mandate.
Duration of Risk. The risk of infection and spread of COVID-19 poses a threat to most areas for the near future. COVID-19 daily infections in Washington are not expected to peak for another several weeks, with estimated daily infections of approximately 1,100 in May 2021. Of course, the duration of the risk may change due to unknown future events, such as mutations to the COVID-19 disease, rapid rollout of the vaccinations, etc.
Nature and Severity of the Potential Harm. Again, for most employees, the potential harm of contracting COVID-19 and falling seriously ill is significant. COVID-19 can cause severe illness, including hospitalization, admission to the ICU, intubation or mechanical ventilation, and death. Because COVID-19 is a new disease, we do not fully know the long-term effects of it. However, according to the Centers for Disease Control and Prevention, more serious long-term complications have been reported, including inflammation of the heart muscle, lung function abnormalities, acute kidney injury, rash, hair loss, smell and taste problems, sleep issues, difficulty with concentration, memory problems, depression, anxiety, and changes in mood.
Likelihood that the Potential Harm Will Occur. Employers must consider the likelihood that the potential harm will occur for each of their employees. The likelihood might vary depending on whether employees can maintain social distance, wear personal protective equipment, frequently wash and sanitize their hands, and generally keep their workplace sanitary. The likelihood might be high for one class of employees and low for another class of employees. For example, a fire district might require its first responders to become vaccinated because they provide direct care for many ill patients, but the same fire district might not require its administrative staff to become vaccinated because they work in offices, appropriately distanced workplaces, or behind plexiglass shields.
Imminence of the Potential Harm. The potential harm is highly imminent. Washington is in the midst of the COVID-19 pandemic with daily deaths expected to rise.
Assuming unvaccinated employees pose a direct threat, the inquiry does not stop there. The policy would need to specifically address employees’ potential requests for medical or religious accommodations:
Disabilities. If an employee were unable to receive a COVID-19 vaccination due to a disability, employers would need to engage in a flexible, interactive process to identify accommodations options. This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability. The employer could only ask disability-related questions if the information is job related and consistent with a business necessity. Any accommodation must (1) eliminate or reduce the risk of exposure so that the unvaccinated employee does not pose a direct threat, and (2) not constitute an undue hardship for the employer.
Sincerely Held Religious Practices and Beliefs. If an employee were unable to receive a COVID-19 vaccination due to a sincerely held religious practice or belief, employers would again need to identify accommodations options that do not constitute an undue hardship. An undue hardship for religious accommodations is anything more than a de minimis cost or burden on the employer. The EEOC recommends that employers assume the employee’s accommodation request is based on a sincerely held belief. Employers could only request information supporting the employees’ religious practice or belief if it has objective basis for questioning the religious nature or the sincerity of a particular practice or belief.
There are additional logistical challenges to implementing a mandatory vaccination policy. Employers should consider a realistic timeline for requiring vaccination, how to keep confidential records of vaccinations, what would be appropriate discipline for violating the policy, how potential side effects might impact staffing, and the effect on morale.
Before disciplining an unvaccinated employee for returning to work, employers should consult with legal counsel because there may be other federal, state, and local laws that might apply.
If you have questions or concerns regarding mandatory COVID-19 vaccinations, please contact Matt T. Paxton of our Employment and Labor Law Practice Group at firstname.lastname@example.org or 360-671-1796.