COMMENTARY FROM COUNSEL

For the October 2020 issue, I penned a column titled “Covid-19 Vaccine Will Force Employers To Make Tough Decisions.” Several important events and decisions in the months since merit further discussion and an update. It is critical to stay apprised of these updates, not only to accurately advise your clients, but also to plan for how the vaccine roll-out will impact your own agencies.

On December 16, 2020, the Equal Employment Opportunities Commission (EEOC) issued updated guidance on an employer’s ability to mandate coronavirus vaccinations for employees. The EEOC advised that employers may require employees to be vaccinated. However, employers that mandate the vaccine must allow for several exemptions.

To begin, employers are required to provide exemptions for those with disabilities that prevent them from safely getting the COVID-19 vaccine. However, this exemption is subject to caveats. Namely, employers can deny a disability exemption when there is no available alternative to avoid the “direct threat” posed by an unvaccinated employee in the workplace. That said, with many employers having already waded through the use of protective equipment, masks, and social distancing, successfully establishing the existence of a “direct threat” will be a heavy burden for even the most high-risk workplaces.

Next, employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy. Notably, having an “anti-vax” belief alone is not sufficient – the belief must be grounded in religion to qualify for protection. That said, EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If an employer knows that a sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination, it must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer.

Finally, a policy of mandatory vaccination raises important considerations regarding Americans with Disabilities Act (ADA) compliance. Under the ADA, an employer’s ability to conduct medical examinations and request medical information from employees is restricted. The EEOC’s guidance clarifies that the COVID-19 vaccination is not a medical examination. Therefore, employers may request that employees provide proof of vaccination. However, because pre-vaccination medical screening questions may elicit medical information about a disability, an employer who asks these questions must meet the standard of being “job-related and consistent with business necessity.” To meet this standard, the employer must reasonably believe that transmission of COVID-19 is a threat to the safety of the employee or others with whom the employee has contact.

Beyond updated EEOC guidance, two other happenings since my previous article on this topic are worth noting. The first is that the vaccine is here. To be more accurate, the vaccines are here. With the Pfizer and Moderna shots already approved, and several others on the verge

of approval, the day in which a member of the general public can be vaccinated is rapidly approaching. Second, Joe Biden was elected and sworn in as the 46th President of the United States. President Biden campaigned on increasing vaccination capacity and speeding up the roll-out. In the first days of his administration, he has already taken steps to advance those goals, including the invocation of the Defense Production Act. These actions may shorten the amount of time between now and general vaccine availability. Both events make it even more critical that your agencies prepare now for how they will respond when the shot becomes widely available.

This preparation should not be limited to how you will treat your own staff. Your clients are likely already contacting you to ask how this may impact insurance coverage. As a result, stay in close contact with legal counsel to continue to understand the legal risks and benefits associated with workplace vaccination. Federal guidance on this topic has shifted in the past few months and may shift again. Legal counsel can help your agencies navigate these trying times, helping to both protect you and your staff and ensure you give your clients the best advice possible.