04/12/2021
Recently, the EEOC has taken the position that the administration of a COVID-19 vaccine to an employee by an employer, or by a third-party administrator on behalf of the employer, is not a “medical examination” under the Americans with Disabilities Act. This means that workplaces may implement policies that require employees to be vaccinated as long as they are not seeking out personal health information themselves. However, this stands only for being present oil the physical workplace.
Despite signaling that an employer may require COVID-19 vaccinations of its employees, the EEOC’s guidance does not give employers freedom to vaccinate their employees. For instance, because the administration of a COVID-19 vaccine likely would require an employee to provide certain pre-screening information – information that may be necessary to determine whether an employee can be vaccinated – the disclosure of that information can trigger the ADA’s provision prohibiting disability-related inquires, which can expose an employer to liability. Thus, if the employer administers the vaccine, it must show that such pre-screening questions are “job-related and consistent with business necessity” to comply with the ADA.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely.
Ultimately, if an employee is unable to receive a COVID-19 vaccination because of a medical reason or sincerely held religious belief, and their inability to be vaccinated cannot be reasonably accommodated, then it would be lawful for the employer to exclude the employee from the workplace. Employers should observe that this does not automatically mean that employers can ban employees from coming to work or terminate an employee’s employment though, as employee's still have rights to determine whether they may be vaccinated or not due to outside reasons.
If you feel your workplace is discriminating against you or forcing you to receive a vaccine you do not want due to medical reasons, religious beliefs or other similar reasons, give us a call at 609-641-2288 to discuss your rights with a free consultation.
On November 25, 2020, I asked the ominous question: “Can I require my employees to get vaccinated against COVID-19?” In that article, I first addressed the pivotal, threshold issue of whet
