Mandatory COVID-19 Vaccine exemption for employees with Disabilities
Today, many companies are trying to get back to business as usual. They want to get their employees back to work, and this means that some employers may be requiring vaccinations. As discussed in a prior blog post, federal law allows employers to require these vaccines in most circumstances. However, there are certain exceptions. One of these exceptions is based on whether the employee is disabled as defined by the Americans with Disabilities Act (“ADA”).
Disabled Employees Could Be Exempt from Mandatory COVID-19 Vaccines
The Equal Employment Opportunity Commission (“EEOC”) is the federal government agency that is responsible for enforcing anti-discrimination laws in the workplace. This includes Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, Genetic Information Nondiscrimination Act, the Americans with Disabilities Act, and the Rehabilitation Act.
The ADA and Rehab Act make it illegal for employers to discriminate against people based on a disability when it comes to hiring, terminating, or complying with certain conditions and terms of employment. Disabilities are defined by the ADA as a physical or mental impairment that creates substantial limitations to one or more major life activities, having a record of this type of impairment, or being regarded as having this type of impairment.
An employee with a disability could be entitled to an exemption from mandatory vaccination if her disability is contraindicated by the vaccine. In this case, the employer will be required to provide reasonable accommodation to the employee up to the point of undue hardship. Undue hardship is generally defined something that is more than a minimum cost or that would significantly hinder business operations.
It is important to keep in mind that if there are no medical reasons that the disabled person can’t have the vaccine, it could still be a requirement. The ADA does not allow employers to conduct any medical examinations of their employees. However, the EEOC has declared that a vaccination is not an examination. And, as long as the employer is not administering the vaccination itself, requiring the vaccine does not solicit any information about the person’s health, physical impairments, or mental impairments — which is also prohibited by the ADA. Thus, employers still need to be careful, as pre-vaccination screening questionnaires could be considered violating the ADA on disability-related questions. Employers need to show that any disability screening questions are related to the job and consistent with their business needs.
Employers in these cases could indicate that not having the employee vaccinated could create a direct health or safety threat for themselves or others. Direct threats are considered to be a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by reduced or reasonable accommodation.”
To determine whether an employee is a direct threat if they are not vaccinated, the EEOC will need to consider four factors: (1) duration of the risk, (2) nature and severity of the potential harm that could be done, (3) likelihood that there will be harm done; and, (4) imminence of the potential harm. This would need to be done on a case-by-case basis. If the employer believes that the employee would be a direct threat, they will then have to discuss with the employee some of the potential reasonable accommodations that could be made. Working with the employee to ascertain the best solution is always required.
What Types of Reasonable Accommodation Could an Employer Offer a Disabled Employee?
Again, this will have to be done on a case-by-case basis and undue hardship is the threshold, but there are many potential options when it comes to reasonable accommodations. The type of business will often determine what types of accommodations might work for the employees.
One of the options that could be used would be to allow the employee to wear a mask and continue with the local social distancing guidelines. It is also possible to have the employee work in a different area of the workplace, where they will not present a risk to others.
It might also be possible to allow an employee to work from home. Over the last year during the height of the pandemic, many companies adjusted their way of doing business and were set up for remote workers. There is no reason that this couldn’t continue with those workers who do not want to get or can’t get the vaccine in most cases. While this might not be possible for all businesses, it can work for many.
In some cases, making accommodations would not be possible. They could cause the employer undue hardship. In those instances, they would not be required to provide accommodations for the employee and could sever their employment or place them on a leave of absence, as long as there are no violations of state or local laws.
Talk with an Attorney
Employers must follow all of the laws in place regarding the ADA and other guidelines from the EEOC. Given all that is happening with the virus and the vaccine, employers may find it more difficult than usual to be sure they are acting in accordance with the law. In these cases, they will want to consider getting in touch with an attorney that can help them understand the law and how it pertains to the situation.
The employer will need to prove that the accommodations would constitute a hardship, which is not always easy for employers to do. They will want to consider legal help to ensure they are complying with the law.
Those employees who have concerns about the vaccine because of a disability will also want to speak with an attorney if they are having issues with their employer. The attorney can provide legal counsel and representation to ensure the employee’s rights are protected.
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