This month, a federal court dismissed a case (Bridges, et al v. Houston Methodist Hospital et al) challenging a Texas hospital’s mandatory COVID-19 vaccine policy for its employees. While prior guidance from the Equal Employment Opportunity Commission (EEOC) provided firm ground on which employers could require vaccinations, the dismissal of the suit against Houston Methodist Hospital and the court’s corresponding opinion further affirms the EEOC guidance to employers, which suggests as a general rule, employers can mandate vaccines without running afoul of the ADA, so long as (1) the vaccines are intended to protect workplace safety and (2) the vaccination programs do not impermissibly require disclosure of disability information.
This article summarizes the EEOC’s guidance and discusses certain procedures employers should follow to ensure that a vaccine mandate does not inadvertently expose them to ADA liability.
Mandatory vaccine programs are generally acceptable to prevent direct threats to workplace safety
The EEOC’s guidance expresses a clear intent that employers should be able to follow public-health guidance favoring vaccinations:
The EEO laws do not interfere with or prevent employers from following guidelines established by the CDC or other federal, state, and local public health authorities.
This is consistent with the ADA, under which an employer can impose employment conditions to protect workplace safety, even if those conditions potentially adversely affect persons with disabilities, when the conditions imposed are intended to minimize or eliminate direct threats to workplace safety. Mandatory vaccines may qualify as such allowable conditions.
To present a direct threat, a non-vaccinated employee must present a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Direct threat assessments require “reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence,” and they must apply the following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. While the second factor is unlikely to be an issue given the severity of the COVID pandemic, the remaining factors require more analysis. For example, progress towards collective immunity may impact the assessment of these factors. Employers must carefully analyze these factors, preferably with their employment counsel’s advice, before implementing a mandatory vaccine policy.
Mandatory vaccine programs should avoid intentional or inadvertent disclosure of disability information
An employer that decides to enforce a mandatory vaccination policy must ensure that implementation does not require disclosure of employees’ disability information or result in its inadvertent disclosure.
Is a mandatory vaccine a “medical examination” seeking health information?
The simple answer is no. Under prior existing EEOC guidance, a “medical examination” is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Because vaccination does not “seek information about an individual’s…health,” it does not fall within the definition of a medical examination.
But as with many issues regarding employees’ health, the simple answer doesn’t fully address potential ADA issues. Because existing conditions may impact whether an individual should be vaccinated, an employee may be subject to screening questions that do constitute a medical examination. The CDC issued a pre-vaccination COVID questionnaire specifically intended to determine if a vaccine is counter-indicated.
If the employer asks the screening questions, the process potentially runs afoul of the ADA. The employer thus must show that the questions are “job-related and consistent with business necessity.” To meet this burden, the employer must: (1) have a reasonable belief; (2) based on objective evidence; that (3) the employee potentially poses a threat to the health or safety of herself or other employees.
Employers can avoid this pitfall by having a third-party (such as a pharmacy) administer the vaccines, so long as there is no contract between the employer and the third-party. Because the third-party asks the screening questions, the employer is no longer conducting a medical examination.
Employers may also avoid potential disclosure issues by implementing voluntary rather than mandatory vaccination policies, with accompanying voluntary disclosure of disability information.
Does proof of vaccination impermissibly seek disability information?
Again, there is a simple answer—no—and a more complicated answer. Proof of vaccination alone does not implicate information about disabilities and therefore does not bring the ADA into play. However, if an employee fails to provide proof of vaccination, follow-up can be problematic. If the employer asks why the employee has not received a vaccination, there is a risk for disclosure of disabilities information. Questions regarding reasons for failure to be vaccinated thus would need to meet the business necessity standard outlined above.
Even if a policy has been fully vetted consistent with the ADA and the EEOC guidance, employers must consider the impact of other federal and state laws before proceeding with exclusion or termination.
Employers must allow for legitimate religious belief exceptions
In response to legitimate objections to vaccinations based on religious beliefs, employers must provide reasonable accommodations, unless doing so would pose an undue hardship. An undue hardship exists when granting the accommodation results in more than a de minimis cost.
Employers can take action against non-compliant employees
Employers should avoid exclusion or termination actions when possible. As mentioned above, non-vaccinated employees with disability or religious belief objections to vaccination are entitled to reasonable accommodations. Termination or exclusion from the workplace are always options of last resort and require consideration of other laws. What constitutes a reasonable accommodation is also an open question that changes depending on the circumstances; for example, is enforced telecommuting until the pandemic ends a reasonable accommodation? The EEOC suggests reviewing potential accommodations at the Job Accommodation Network.
Conclusion
The EEOC considers mandatory vaccine programs to be consistent with the ADA when implemented correctly and for proper reasons. However, employers must carefully design their policies to avoid intentional or inadvertent disclosure of employees’ disability information. In addition, employers must consider whether their policies comply with other federal and state laws. A mandatory vaccine policy should be implemented under the advice of qualified employment counsel.
Max Julian is a partner at Gertsburg Licata in the litigation practice group. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A, and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
