(Updated December 30, 2020)
As news quickly develops surrounding the COVID-19 vaccine, many Texas employers may be wondering whether they can require their employees to get vaccinated once the vaccine becomes widely available. The Equal Employment Opportunity Commission (EEOC) recently updated its guidance on this topic. This blog article distills important take-aways from the EEOC’s updated guidance.
- Can Texas employers require employees to be vaccinated for COVID-19?
Generally, yes, employers can require that employees be vaccinated once they are widely available. However, there are two main exceptions relating to disabilities and religious objections (see questions #2 and #3 below).
2. What if an employer requires vaccines, but an employee cannot comply with the requirement because of a disability?
The EEOC’s updated guidance indicates that if the vaccination requirement tends to screen out an individual with a disability, then in order to exclude the employee from the workplace, the employer must be able to establish that the unvaccinated person poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual and others that cannot be eliminated or reduced by reasonable accommodation.” Employers in this position must conduct an individualized assessment, addressing the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.
If the employer determines that the unvaccinated individual will expose others to the virus at the worksite and poses a direct threat, the employer must then determine whether there is any other way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so that the employee does not pose a direct threat. If the direct threat cannot be reduced, the employee can be excluded from the workplace, but the employer should also explore other accommodations, such as allowing the employee to work remotely.
In determining whether accommodations are available, employers are encouraged to engage in an interactive process with the employee to identify possible options. The process might also include obtaining supporting documentation from the employee to document the employee’s disability, and consulting CDC recommendations. Employers are also advised to consult the Job Accommodation Network, commonly referred to as JAN.
3. What if an employer requires vaccines, but an employee cannot comply with the requirement because of religious objections?
The EEOC’s updated guidance indicates that if an employer is on notice that an employee’s sincerely held religious beliefs, practices, or observances prevent the employee from receiving a vaccination, the employer must provide a reasonable accommodation unless it would impose an undue hardship. In the context of religion, “undue hardship” means more than a de minimis cost or burden on the employer. The guidance advises employers to assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if there is an objective basis for questioning the religious nature of the belief or the sincerity of a particular belief, practice, or observance, the employer can ask for supporting documentation. If there are no accommodations that would not impose an undue hardship, the employer may exclude the employee from the workplace. However, as discussed in question #2, employers should consider alternative accommodations such as remote work, if possible.
4. Is vaccination a “medical examination” under the Americans with Disabilities Act?
The EEOC’s updated guidance says “no.” The Americans with Disabilities Act generally prohibits medical examinations unless they are job-related and consistent with business necessity. To meet this standard, the employer generally must show that it has a reasonable belief, based on objective evidence, that an unvaccinated employee will pose a direct threat to the health or safety of him or herself or others. (See question #2 above.) In its updated guidance, the EEOC confirms that a vaccine itself is not a medical examination.
Although vaccination itself is not a medical examination, the EEOC’s guidance does consider pre-vaccination medical screening questions to be medical examinations if they are likely to elicit information about a disability. To avoid having to prove the “job-related and consistent with business necessity” requirement, the guidance notes that (i) employers can provide vaccines (and ask related pre-screening questions) on a voluntary basis, or (ii) employers can require vaccines to be obtained from third parties that do not have contracts with the employer, such as a pharmacy or other health care provider. The latter route appears best for employers requiring vaccines—require employees get their vaccines from a third-party health care provider of the employee’s choosing.
5. Even if Texas employers can require their employees be vaccinated, should they?
This is a more difficult question to answer. Although employers generally can require employee vaccinations, there may be groups of employees who fear that the vaccine isn’t safe. Forcing employees to choose between getting a vaccine they are wary of or losing their job puts them in a difficult position. To avoid this situation, employers might consider adopting the EEOC’s approach in its Pandemic Preparedness Guidance—that is, encouraging (but not requiring) employees to get vaccinated. This effort might be more successful in certain circumstances, especially if coupled with educational campaigns that inform employees of the safety and efficacy of vaccines.
6. Does the discussion in Questions #2, #3, and #4 above apply to Texas employers with 14 or fewer employees?
No. Mandatory-vaccination policies potentially trigger legal issues under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, as well as Chapter 21 of the Texas Labor Code. However, these statutes only apply to employers who employ 15 or more employees in 20 or more calendar weeks in the current or preceding year. If the employer employs 14 or fewer employees, the employer is not covered by these statutes, and is likely not covered by any laws that would prohibit a mandatory-vaccine policy.
