Fortunately, although Idaho’s vaccination rate remains relatively low, COVID numbers are dropping dramatically. Businesses are reopening and people are gathering again. Some employees may return to physical workspaces; some may continue to work remotely. As Idaho continues to reopen, companies must address employee safety pertaining to COVID-19 exposure and vaccinations.
Companies must also attract and retain qualified employees. Competition for good employees is fierce. Idaho’s seasonally adjusted unemployment rate in April was 3.1%. Some businesses are closing because they cannot find the qualified employees they need to operate.
Given these dual concerns of potential safety and scarcity of employees, private companies should endeavor to encourage, if not require, vaccinations for returning employees to attract and retain the best talent.
Patchwork of Employment Protection Laws
Well before the pandemic, businesses have had to comply with employee protection laws at both the federal and state level.
On the federal level, the Equal Employment Opportunity Commission (EEOC) is tasked with enforcing laws against discrimination in the workplace, such as the Americans with Disability Act (ADA) and the Rehabilitation Act (essentially the ADA for federal agencies, federal programs, businesses receiving federal financial assistance and federal contractors), Title VII of the Civil Right Act and its various amendments (Title VII) (prohibiting discrimination based on race, color, national origin religion, sex, and pregnancy), the Age Discrimination in Employment Act (ADEA) (prohibiting discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act (GINA) (prohibiting discrimination based on genetic information in health coverage and employment).
Also on the federal level, the Occupation Health and Safety Administration (OSHA) is the federal agency responsible for ensuring safe and healthful workplaces and has long required companies to implement measures to keep employees safe. Idaho does not have a federally approved occupational safety and health regulatory program; private sector employers must comply with OSHA’s federal standards.
Companies also must contend with state oversight. Every state has its own agencies tasked with oversight of discrimination and safety in the workplace. In Idaho, the Idaho Human Right Commission was established by the legislature to help protects persons, including employees, from illegal discrimination. The Commission relies heavily on EEOC guidance in addressing claims of workplace discrimination.
Employment Protection Laws and Vaccinations
In responding to the public health issues wrought by the pandemic, companies still must comply with employee protection laws. Understanding how these laws intersect with COVID-19 vaccinations will help companies not only keep their employees safe but also protect against unwanted liability exposure.
Since March 2020, when the United States began to shut down, the Equal Employment Opportunity Commission (EEOC) has been clear that employee protection laws like the ADA and Title VII do not interfere with or prevent businesses from following the guidelines and suggestions made by the Center for Disease Control (CDC) or state and local public health authorities implemented for public safety reasons. However, the EEOC has warned that businesses must follow those public safety guidelines in a manner that does not violate employee protection laws.
With vaccination rates nationwide reaching fifty percent (50%), in late May 2021, the EEOC updated its COVID-19-related guidance to address and respond to the wave of workers who will be returning to work—some who will be vaccinated and others who will not. In that guidance, the EEOC makes clear that, under certain circumstances, companies can require their employees be vaccinated before returning to work. The EEOC also states that companies may offer incentives to employees to encourage they get vaccinated. Yet again, however, the EEOC cautions that companies implementing these requirements and incentives must do so in a manner that complies with existing employee protection laws.
The ADA and Title VII
As companies address whether and how to implement a vaccination policy, they will encounter employees who claim they cannot get a vaccine because they are disabled or hold a sincerely held religious belief. Companies should have policies in place that treat those employees fairly and consistently with applicable employee protection laws.
Under the ADA, if companies do require vaccinations or offer incentives, they must do so in a way that is job-related and consistent with business necessity, and that provides reasonable accommodation if an employee cannot get vaccinated due to a disability. Given the still-present risk of COVID-19 (and potential variants), a vaccination policy will almost always be considered job-related or consistent with business necessity. Thus, under the ADA, companies may be required to provide reasonable accommodation if an employee claims he or she cannot get vaccinated due to a disability.
Under Title VII, if an employee elects not to be vaccinated based on a sincerely held religious belief, a company may also be required to provide a reasonable accommodation.
Under either law, a company need not provide a reasonable accommodation if to do so would impose a direct threat to the health and safety of the employee and other workers or an undue hardship.
What is a Reasonable Accommodation?
The law defining a sincerely held religious belief or disability is complicated. Companies must take seriously any request for an accommodation by one of their employees. We recommend that, should companies decide to implement a vaccination requirement, those companies notify all employees, in writing, that they will consider requests for reasonable accommodation on an individualized basis.
While the type and manner of reasonable accommodations vary depending upon each situation, some typical accommodations for those who are not vaccinated may include:
What is a Direct Threat that Might Eliminate the Obligation to Provide Reasonable Accommodation for a Disability?
For those employees that claim they are disabled, a company may not be required to provide a reasonable accommodation if the employee would pose a “direct threat” to the health and safety of himself or herself or those in the workplace that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). Whether an employee poses a “direct threat” depends on whether that employee can safely perform the essential functions of the job. That determination considers many factors which include the type of work environment and the likelihood and imminence of potential harm in that work environment. A “direct threat” assessment should be based on reasonable medical judgment that relies on current medical knowledge about COVID-19.
What is an Undue Hardship That Might Eliminate the Obligation to Provide a Reasonable Accommodation for A Disability or Sincerely Held Religious Belief?
A company may also not be required to provide reasonable accommodation if it would pose an undue hardship on the company.
Under the ADA, to determine whether the accommodation would cause an undue hardship, a company should consider: (1) the nature and cost of the accommodation; (2) the overall financial resources of the company; (3) the type of operation of the company; and (4) the impact of the accommodation on the operation of the company. A company’s burden to establish undue hardship when determining whether a reasonable accommodation must be provided is high.
Under Title VII, the standard is different and less rigorous than the ADA’s standard. Under Title VII, an undue hardship includes not only economic or financial burdens—which would meet the ADA standard—but also a disruption in the workplace or imposition on other workers—which would not meet the ADA standard.
Evaluate Each Request for Accommodation
Companies should approach employee requests to opt out of any vaccination policy on a case-by-case basis and consider each employee’s request for accommodation in the context of overall workplace safety. Certainly, there can be sharp edges for companies as employees return to work. However, with thoughtful and careful policies and protocols that prioritize employee safety and well-being, companies will find themselves well-positioned to hire and retain the qualified employees needed to successfully operate.
Harassment Based on National Origin, Race or Other Protected Characteristics
Harassment specifically directed at an individual because of a protected characteristic, including race and national origin, is prohibited by Title VII. Companies must actively communicate with their workforce that such harassment is prohibited and will not be tolerated. The EEOC has issued harassment policy tips for small business which are practical and, with some foresight, can readily and successfully be implemented.
Voluntary Vaccination Programs
Companies may also offer voluntary vaccination programs even when vaccines are not job-related or consistent with a business necessity. Should companies elect to proceed on a voluntary basis, they cannot take adverse action against, or harass, those employees who elect not to get vaccinated or refuse to share information about their vaccination status. Companies also must be careful about offering a voluntary vaccination program on a selective basis which may exclude certain employees based on national original or another protected basis.
Equal Access to Vaccines
Companies should consider that certain communities may not have the same access to vaccinations as other communities and help their employees understand their vaccination options. As of May 2021, the federal government is providing vaccines at no cost to anyone over the age of 12. The resources available to provide equal access to vaccinations are abundant. At the federal level, information can be obtained at the following websites: https://www.vaccines.gov/ and https://www.cdc.gov/publichealthgateway/healthdirectories/index.html (with links to state and local directories). For employers, the CDC has created comprehensive guidelines to help businesses create workplace vaccination programs.
Individuals over the age of 65 face higher risk for a severe case of COVID-19 if they contract the virus. The CDC encourages businesses to offer the most flexibility for these individuals in the workplace. Unlike the ADA, the ADEA does not require companies to provide reasonable accommodation. In other words, age alone does not require a business to explore accommodations for that worker. However, companies must be careful to not involuntarily exclude older workers out of benevolent concern for their safety, which would be a violation of the ADEA. Of course, as with any employee, an older employee may have an underlying disability, for which the reasonable accommodation requirements of the ADA would apply.
While the ADA does not consider pregnancy itself to be a disability, pregnancy-related medical conditions are considered a disability. Companies cannot treat employees with pregnancy-related medical conditions differently from other employees who are similar in their ability or inability to work. Such employees must be offered the same or similar job modifications, such as telework, changes to schedules or assignments, and leave. If a pregnant person requests an exemption from a work-related vaccine requirement based on a pregnancy-related medical condition, the company must consider such request on an individualized basis and may be required to reasonable accommodate that request.
The first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA (Pfizer-BioNTech, Moderna, and Janssen) include pre-vaccination medical screening questions that do not request information about a patient’s genetic information, including asking about such patient’s family medical history. Thus, any vaccination program properly implemented by a company using one of these three vaccines does not implicate GINA.
Idaho does not have a federally approved occupational safety and health regulatory program. Thus, private sector workplaces are regulated by federal standards. As society reopens, companies must remain vigilant. This month (June 2021), the Occupational Safety and Health Administration (OSHA) updated its emergency temporary standard (COVID ETS) and its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for non-healthcare employers and workers (Guidance) in response to increasing vaccinations. As a surprise to some, OSHA limited application of its updated COVID ETS to most health care employers.
For all other industries, OSHA continued to make recommendations (as opposed to requirements) regarding COVID-19-related safety through its Guidance, which provides that:
A common misconception is that an employer’s collection of an employee’s medical information is covered by the Health Insurance Portability and Accountability Act (HIPAA). Employers are generally not “covered entities” under HIPAA and thus not subject to it. However, as with other employee medical information, employers must keep an employee’s medical information pertaining to COVID-19 and vaccinations confidential and stored separately from the employee’s personnel file.
Is a Company Required to Have a Vaccination Policy?
Vaccination requirements, incentives and voluntary programs are not mandatory. Companies do not have to have them. However, they are a good idea. Having such a policy can establish that the business is taking appropriate steps to protect its work force. Many states across the country have passed laws providing some limited immunity to business from COVID liability. Idaho passed just such a law, which was extended one year in the most recent legislative session and is now set to expire July 1, 2022. These laws generally advise that, for such liability protection, business must comply with public health guidance by federal, state, and local authorities. These laws also do not shield business from liability for COVID-related injuries caused by wanton, reckless, willful, or intentional misconduct.
While not all agree vaccinations provide a safe avenue to reopening, as businesses welcome their employees back to the workplace, they should do so in a manner that increases employee safety and satisfaction. Dempsey Foster is here to help if you have questions.