March 17, 2021
There are three vaccines for the Covid-19 virus available and recommended in the United States: the Pfizer-BioNTech vaccine, the Moderna’s Covid-19 vaccine, and the Johnson & Johnson’s Janssen Covid-19 vaccine. The Pfizer-BioNTech vaccine consists of 2 shots in the upper arm, administered 21 days apart. The Moderna vaccine also consists of two shots. However, the shots are administered 28 days apart. The Johnson & Johnson’s vaccine consists of 1 shot only. In addition to the two vaccines already available, there are two others currently in Phase 3 of clinical trials. Although vaccinations are available now, many people have questions regarding their safety, long-term effects, and the ability of employers to mandate vaccinations for employees. When it comes to mandating Covid-19, employers are generally permitted to require employees to receive the vaccination.
The Americans with Disabilities Act (ADA) was enacted to protect employees with physical and mental disabilities from being subjected to disability-related discrimination at their jobs. It prevents medical examinations and inquiries regarding a disability at certain stages of employment without a reason that is job-related and consistent with business necessity. However, Covid-19 is defined as a “direct threat” and allows employers to enact certain controls in the workplace to protect the health and safety of all employees.
Additionally, the ADA requires that, where an employee has a mental or physical disability, the employer is to cooperate with the employee to determine reasonable accommodations that allow the employee to work without creating some undue hardship on the business. An undue hardship is any significant difficulty or expense that the employer would incur in providing the accommodation.
Although a vaccine can be mandated by an employer, there are likely exceptions to mandatory Covid-19 vaccinations based on the ADA. If an employee cannot receive a Covid-19 vaccination because of some disability or underlying medical condition, the employer should work with the employee to find a reasonable accommodation that allows the employee to perform the essential functions of the job. Some reasonable accommodations may include wearing a mask or working from home. However, if working from home prevents the employee from completing the essential functions, the employer does not have to grant such a request.
It is widely known that an employer’s ability to make disability-related inquiries or require medical examinations are limited to those that are job-related and consistent with business necessity. However, it is a common misconception that this applies at all stages of employment. Under the Americans with Disabilities Act (ADA), an employer’s ability to make disability-related inquiries or require medical examinations falls within one of three categories: pre-offer, post-offer, and employment. Before an offer of employment is made, the ADA prohibits all disability-related inquiries and medical examinations, even those that are related to the job. After a job offer is made, but before the employee begins working, an employer may make disability-related inquiries and conduct medical examinations as long as it does so for all entering employees in the same job category. Once an employee begins working, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
However, the question is where Covid-19 vaccination is considered a medical exam under the ADA, and if so, can an employer require it during all stages of employment? The Equal Employment Opportunity Commission (EEOC) has determined that the vaccine itself is not a medical examination. A medical examination is defined as “a procedure or test usually given by a healthcare professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” The EEOC has stated that a mandated vaccine would not fit within this definition since an employer is not inquiring as to impairments or the employee’s current health status. However, the pre-screening vaccination questions may result in the information regarding an individual’s disability being disclosed, which would likely implicate the ADA’s provisions regarding disability-related inquiries. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”
If you have a disability that prevents you from receiving a Covid-19 vaccination, such as an allergy to one or more of the ingredients in the vaccine, the employer will have to demonstrate that your inability to receive the vaccine would pose a direct threat to the health and safety of other employees. The employer must also show that the direct threat cannot be eliminated or reduced by a reasonable accommodation.
To determine whether a direct threat exists, your employer should consider four factors, including:
Upon analyzing these four factors, your employer may decide that you will expose other employees to the Covid-19 virus in the workplace, making it a direct threat. However, when you cannot be vaccinated due to a disability and you, therefore, pose a direct threat to other employees, your employer cannot exclude you from the workplace unless it is determined that he or she cannot provide a reasonable accommodation without posing an undue hardship on the business.
When a direct threat cannot be eliminated or reduced to an acceptable level because there is not a reasonable accommodation available, your employer may exclude you from physically entering the workplace. However, excluding you does not mean that your employer can automatically terminate your employment. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. When you are excluded from the workplace, you may have certain entitlements such as working from home or taking leave under the Families First Coronavirus Response Act (FFCRA). This act requires some employers to provide employees with paid sick leave or leave for specified reasons related to COVID-19.
Because Covid-19 and its vaccinations are new in today’s world, you may have questions regarding the ability of your employer to mandate a vaccine. If you have questions regarding your employment rights, call the attorneys of McClanahan Powers, PLLC at 703-520-1326, or visit our website to schedule your consultation today.