With the COVID-19 vaccine readily available, many people are excited to return to normal life, while others won’t get the vaccine for personal reasons. Whether those reasons are medical, religious or otherwise, many businesses have had to determine how to handle their return to in-person work.
Yelena Katz, an associate with Benesch Law in Cleveland, and Richard Selby, an attorney at Dworken & Bernstein Co., L.P.A. in Painesville, said there are many rules and regulations companies have to follow regarding vaccines.
Selby said, with respect to vaccinations, the U.S. Equal Employment Opportunity Commission looks at this primarily from the perspective of the Americans with Disabilities Act.
“The base inquiry of ‘have you been vaccinated or not?’, the guidance the EEOC has put out is that it is not a medical inquiry, and that you’re allowed to ask a yes or no question,” Selby said. “If the answer is ‘no,’ it becomes far more complicated, because the answer of ‘no’ may implicate medical inquiries, and there may be medical reasons why they’re not vaccinated.”
According to Katz, the employer is allowed to have a policy that mandates vaccination. But the employer needs to provide accommodation for employees who can not be vaccinated due to medical reasons or their sincerely held religious beliefs. Katz added they are not finding many employers are mandating vaccines.
“Mostly, people are asking those questions because they want to plan their return to the office,” Katz said. “They’d like to know how much of the workforce will be vaccinated or not. But for those employers who are mandating it, they need to allow for accommodations, and go through the process of employees who can not be vaccinated due to religious reasons, or because of a medical condition that prevents them from receiving the vaccine.”
Selby said the EEOC has already discussed this in its guidelines for employers.
“EEOC has a subsection that goes through what the employer can and cannot do relative to inquiries with respect to employees,” Selby said. “When it comes to making a decision like requiring all employees to be vaccinated, an employer has to make exceptions for people who aren’t getting it for a legitimate medical reason and they have to make exceptions for those who aren’t doing it because of sincerely held religious beliefs.”
Selby said the EEOC guidance walks through when an inquiry is a legitimate job-related inquiry, and how to make those inquiries without violating the employee’s rights.
“Every job and work environment is a little different,” Selby said. “So, the things that may trigger it as an important inquiry for one business may not be applicable to another. For example, if you’re working in the medical field and you’re going to have somebody who is dealing with patients in a hospital, whether they could infect vulnerable patients in a hospital, there may be more job-related requirements to know.
“This is as opposed to, for example, somebody who is a remote employee working at home and doesn’t really come into contact with people. Is their vaccination status really going to impact their ability to do their job?”
According to EEOC guidance that came out last month, there are different incentives an employer can provide to employees who received the vaccine from a third party, such as a pharmacy or hospital.
“When it’s a third party, it’s much looser standards, and pretty much any incentive will be OK to provide, because you’re not implicating the Americans with Disabilities Act in that case,” Katz said. “If you are providing the vaccine on site or mandating the vaccine through an agent of yours, then you need to make sure that the incentive is not coercive.
“The guidance did not address what coercive means, so employers need to grapple with that. We’ve seen employers providing extra PTO, maybe a lottery system where everyone’s name is put into a lottery, people.”