By Carrie B. Cherveny, Esq.
Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) protects qualified individuals with disabilities from employment discrimination. Under the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment.
Employees with medical conditions that qualify as a “disability” under the ADA may not be able to receive the vaccine and may require an accommodation. The EEOC cautions employers that they may not unilaterally require vaccinations and must allow exceptions under both the ADA and Title VII of the Civil Rights Act of 1964 (religion). More specifically, the EEOC has stated that employers may not establish unilaterally mandatory vaccine programs in its COVID-19 FAQ – Question 13.
Importantly, the EECO specifically qualified this question because both the ADA and the Title VII, religious discrimination, require a cooperative process to determine a reasonable accommodation (see Title VII – Religion below). If an employee objects to the vaccine based on a disability, the employer must engage in the interactive process to determine a reasonable accommodation so that the employee may perform the essential functions of the job. Accommodations could include a job reassignment to a more physically isolated position, telework, physically moving the employee to a more physically isolated location (such as from a cube to an office with a door), providing an air cleaner/purifier in the employee’s work area, and/or the requirement to wear specific Personal Protective Equipment (PPE) such as a mask, face shield, and engage in more aggressive sanitizing, disinfecting, and hand washing protocols.
Title VII of the Civil Rights Act of 1964
Title VII protects workers from employment discrimination based on their race, color, sex, national origin, or protected activity. Like the ADA, Title VII (religion) contemplates accommodating individuals in certain situations. Employees and applicants are entitled to an accommodation when a person identifies a sincerely held religious, ethical or moral belief that conflicts with a specific task or requirement of the position or an application process. More specifically, a religious accommodation is any adjustment to the work environment that will allow an employee or applicant to practice his or her religion, so long as it does not cause an undue hardship to the employer.
A court in at least one case provided the following important guardrails regarding mandatory vaccination programs.
- Anti-vaccination beliefs could be (and sometimes are) protected where associated with religious adherence. Employers choosing to implement vaccination requirements must appropriately respond to employees refusing to be vaccinated. If an employee objects to a vaccine on the basis of his/her religion, employers should engage in a cooperative and interactive process to determine whether a reasonable accommodation exists that will protect the health and safety of its workers while removing the conflict between the requirement and the employee’s religion.
- Likewise, (just like with the ADA) employees are not entitled to the accommodation of their choice. Accommodations may include a job reassignment or the requirement to wear specific Personal Protective Equipment (PPE) such as a mask, face shield, and engage in more aggressive sanitizing, disinfecting, and hand washing protocols. >
- Employers must be sure that their approach and accommodations are consistent. For example, if the employer allows an employee to wear PPE instead of a vaccine under the ADA, it likewise should offer that option as a religious accommodation.
Other Employer Considerations
Pregnancy
There are two significant considerations with respect to the Pregnancy Discrimination Act (PDA) and the request for an accommodation.
- While the PDA does not contain an obligation to provide an accommodation (like the ADA), employers must be sure that they act consistently. This means if the employer has provided an accommodation to an employee on the basis of their disability or religion, they likewise should provide the same accommodation to a pregnant employee. Failure to act consistently may result in a claim of pregnancy discrimination.
- Additionally, some pregnancy related impairments (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the ADA (see ADA section above).
National Labor Relations Act
Mandatory vaccines can be a controversial issue and as such, may be included or addressed in an employer’s Collective Bargaining Agreement (CBA). Likewise, it is likely that a vaccination requirement may be a subject to mandatory bargaining with the union. Employers with a union population and considering a vaccination policy should review the CBA and discuss their vaccination program with outside counsel.
Workers’ Compensation
Employers may offer the COVID-19 vaccination in the workplace or even require employees to receive the vaccine. What happens if an employee experiences a medical complication from the vaccine? Under certain circumstances, an employee’s medical complications associated with the vaccine may be deemed compensable and covered by the employer’s workers’ compensation insurance. Generally, an injury may be compensable when a claimant can demonstrate that the injury can be attributed to some event or circumstances connected with work. An employee who receives the vaccine while at work may be able to demonstrate that the medical complications were “in the course of employment in the sense of continuity of time, space, and circumstances.”
Confidentiality and Employee Medical Information
As employers begin to learn about employee’s individual medical concerns and conditions, it is important to remember that several laws have specific and stringent confidentiality requirements. FMLA, ADA, and Workers’ Compensation laws all contain provisions that protect the confidentiality of an employee’s medical information. Employers have the obligation to ensure that all medical information obtained about an employee remains private and confidential. This means, that only those who “need to know” may know both the identity and nature of the medical condition of the employee. Need to know is construed very narrowly.
The COVID vaccine remains an evolving compliance conversation. For more detailed information about vaccines and employment, read Beyond COVID-19: Vaccines and the Workplace — Understanding Employment Law and Vaccines, a HUB e-book.
HUB International’s Compliance Officers are prepared to help you navigate the regulatory environment that can impact your human resources and benefits management.