COVID Vaccine May Potentially Cause Discrimination Issues for Employers

Covid-19 Vaccine vials

The COVID-19 vaccines have begun to roll out across the country. That means that some employees are able to return to the workplace, even while others never left. Can your employer require you to take the COVID vaccine or is that disability discrimination? Here are some considerations for employers and employees alike as businesses struggle to get back to work.

COVID-19 and the Americans With Disabilities Act

For the past year, food-service workers, medical professionals, and other essential workers have been negotiating an ever-changing sea of COVID-19 workplace restrictions and requirements. Social distancing, cleaning protocols, mask requirements, and other changes have sought to keep employees and customers safe while still keeping the company’s doors open and the lights on.

COVID-19 has affected more than 24 million Americans (as of this writing). While over 400,000 have died, many more have been sick, recovered, and now seek to return to the workforce. Employers may want to take preventative measures to avoid the spread of the disease. However, the ADA and other laws against disability discrimination still apply.

The Americans with Disabilities Act, the Rehabilitation Act, and other federal anti-discrimination laws limit what employers’ access to employees’ health information, and in many cases prevent hiring and firing decisions based on an employee’s illness or disability. The result is a tightrope of health, safety, and privacy that can easily tip into disability discrimination that hurts everyone -- employees and employers alike.

Can My Employer Screen for COVID Symptoms or Make Me Take a Test?

The Centers for Disease Control (CDC) recommends employers screen their employees for COVID symptoms and immediately send home anyone experiencing:

  • Fever
  • Chills
  • Cough
  • Shortness of breath
  • Sore throat

Other health professionals add:

  • Loss of smell or taste
  • Gastrointestinal problems
  • Nausea
  • Diarrhea
  • Vomiting

However, the ADA restricts what medical information an employer may obtain employees. All health-related questions or medical exams must relate to the job and be “consistent with business necessity.”

The Equal Employment Opportunity Commission (EEOC) says that COVID symptom screening questions and mandatory testing are medical exams covered by the ADA. However, they are also necessary to do business in the face of the pandemic. The EEOC says that employers can ask employees if they are experiencing COVID 19 symptoms, take their temperature, or tell them to get a COVID-19 test. However, the results of these medical exams must be protected and can’t be publicly disclosed.

Will I be Forced to Take a COVID-19 Vaccine to Keep My Job?

As the Coronavirus vaccines become more readily available, many employers are considering requiring their employees to receive them as a condition of employment. However, many employees have concerns about the vaccine’s safety, effectiveness, or need. According to the EEOC, mandating a COVID vaccination for employees does not violate the Americans with Disabilities Act because it is not a medical exam or inquiry.

What if I Have a Disability or a Religious Objection?

General concerns about health and safety don’t automatically outweigh employees’ rights, though. Some people are medically unable to receive vaccinations (perhaps due to an allergy). Others may have sincerely held religious beliefs that prevent them from taking the medicine. The EEOC has said that these concerns must be addressed on a case-by-case basis. As with other forms of religious and disability accommodations, the inability to get a vaccine is not automatically grounds to terminate an employee. However, it may be a reason to prevent you from coming into the workplace. Your employer will need to determine whether “reasonable accommodations” can be made, such as:

  • Telework
  • Continued social distancing and cleaning protocols
  • Mandatory masking or face shielding

Unless these accommodations would create an “undue hardship” on the business, your employer must take reasonable steps to allow you to continue to work even without the COVID vaccine.

Best Practices for Employers Considering Mandatory COVID Vaccines for Workers Returning to the Office

Employers are now facing a challenge, balancing disability discrimination laws and the need to protect employees from the coronavirus. Here are some considerations in finding the right balance.

Decide Between Mandatory and Voluntary COVID-19 Vaccination

One way to avoid the case-by-case evaluation of each employee’s vaccination objections is to make them voluntary. Employers who have been operating remotely could, for example, allow employees to return to the office only after receiving the vaccine, but continue to allow telework for anyone who opts out.

Work with Employee Unions to Implement Health Management Rules

If your employers are unionized, vaccination policies will likely require mandatory collective bargaining under a management rights clause. By starting these negotiations well in advance of any mandatory vaccination policy, employers can give their employee unions time to address anxiety around the vaccines and educate employees about their safety and effectiveness. This can increase employee buy-in and help ensure a safe workplace while protecting employees’ rights.

Use a Third Party Vendor for Screening, Testing, and Vaccination to Protect Employee Medical Information

If you decide that mandatory screening, COVID testing, or vaccination is a business necessity, don’t have your own employees perform the medical exams. The screening questions leading up to testing or treatment can create potential disability discrimination violations, even when the actual exam is needed for employees’ safety. By hiring an outside vendor to perform the exams, you shield your employees’ medical information and make sure they don’t face discrimination due to COVID-19.

COVID-19 has created new questions for everyone about health and safety at work. Finding the right balance of employee safety, health, and privacy requires careful attention to the ADA and other disability discrimination laws. Whether you are an employee facing mandatory testing or vaccination, or an employer looking for best practices in a changing legal environment, we can help.

At Eisenberg & Baum, our employment discrimination attorneys, help workers protect their religious rights under Title VII, as well as their health and privacy under the Americans with Disabilities Act, and state civil rights laws. We can help navigate the discrimination issues created by COVID-19 and the rush to get the vaccine into the arms of key employees. If you believe your employer has violated the ADA or are an employer yourself trying to create a policy, contact us. We'll meet with you and help create a strategy that protects the rights and the health of your employees and coworkers.

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