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As schools seek to return to normalcy, districts are considering mandating vaccinations for their employees as a method of ensuring the health and safety of their schools and communities at large. While this decision will be affected by the general attitude toward vaccinations in any given location, all school leaders should be aware of the potential risks and pitfalls of requiring inoculation of all employees.
The Equal Employment Opportunity Commission’s (EEOC) technical assistance guide, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” has clarified two main questions employers have related to COVID-19 vaccination and the workplace:
(1) An employer may require a vaccinated employee to show proof of receipt of a COVID-19 vaccination without violating EEO laws, if the employer only asks whether the employee is vaccinated and avoids additional questions, such as why the employee did not receive the vaccination.
(2) Employers can mandate that employees get a COVID-19 vaccination as a condition of returning to the workplace without violating EEO laws so long as the employer properly considers requests for exemptions. The exemptions are based on the employee’s a) disability or medical condition that makes receipt of the vaccine dangerous to the individual pursuant to the Americans with Disabilities Act (ADA), or b) sincerely held religious belief pursuant to Title VII of the Civil Rights Act of 1964.
For employees who have health-based or religious-based objections to receiving the vaccination, the district should determine whether an unvaccinated employee would pose a “‘direct threat” due to a “significant risk of substantial harm” to the health or safety of the individual or others “that cannot be eliminated or reduced by a reasonable accommodation.” A direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.
If the direct threat cannot be reduced “to an acceptable level” through a reasonable accommodation, the employer can exclude the employee from entering the workplace. Excluding the employee from the workplace is not necessarily a reason to terminate the worker. If remote work or other options are not possible, consider allowing the employee additional leave under the FFCRA, FMLA, or under other of the employer’s policies.
On April 27, the CDC issued guidance stating that fully vaccinated individuals no longer need to wear masks in most indoor and outdoor settings. Accordingly, many employers have considered providing some sort of identifying marker, such as a sticker on an ID, that would show that the employee has provided proof of vaccination and does not need to wear a mask.
The EEOC cautioned against this practice, stating that the employer may be inadvertently identifying individuals with disabilities who are unable to get vaccinated.
Emergency Use Authorization
Districts also must be mindful of the ambiguity surrounding the question of whether an employer can mandate its employees get a vaccine that has only been authorized through the Emergency Use Authorization (EUA) process.
At press time, all the COVID-19 vaccines that are available in the U.S. have been approved only through the EUA process. The applicable law states that the Secretary of Health and Human Services shall “ensure that individuals to whom the [EUA vaccine] is administered are informed…of the option to accept or refuse administration of the [vaccine], of the consequences, if any, of refusing administration of the [vaccine], and of the alternatives to the [vaccine] that are available and of their benefits and risks.”
Legal experts are debating whether this section should be read to prohibit any sort of mandatory workplace vaccination program that involves EUA vaccines. While the statute states that a person has the option to accept or refuse an EUA vaccine, it also implies that there can be consequences for not accepting it. Arguably, such consequences could include those related to employment.
Many employers are considering providing incentives to encourage employees to receive the vaccine. Such incentives might include one-time cash payments or bonuses, credits for additional hours of pay, or paid time off. In its most recent guidance, the EEOC stated that offering incentives to employees to voluntarily provide proof of vaccination by a third party is an acceptable practice.
However, the EEOC warns that incentivizing employees to receive the vaccination under an employer-delivered vaccination program could violate the law or be seen as coercive. A large incentive could make employees feel pressured to disclose protected medical information. Employers must ensure that the incentive policy does not discriminate against employees who decline to take the vaccine due to medical conditions or on religious grounds.
As Elementary and Secondary School Emergency Relief monies are being disbursed, the federal government said some of these funds may be used to pay bonuses, which could include monetary incentives to employees who get vaccinated.
In April, the CDC updated its document, “Public Health Recommendations for Fully Vaccinated People.” The new recommendations state that those who have been fully vaccinated do not need to test or quarantine after a known exposure if they are asymptomatic. Pursuant to the Families First Coronavirus Response Act, prior to December 2020, districts were required to provide paid leave for individuals who were required to quarantine.
If districts are continuing this voluntary coverage of paid leave, they must be careful to do so consistently, even if a quarantine could have been avoided if the employee had been vaccinated. Only covering the leave of vaccinated employees could subject a district to liability based on unequal treatment or violation of Title VII or the ADA.
As a final note, readers should be aware that this is a rapidly evolving area of the law, which has state-specific issues to consider. Legal counsel should be consulted before schools make any decisions regarding vaccines.
Allison Aiken Hanna is a partner at Halligan Mahoney & Williams. David N. Lyon is a partner at Duff Freeman Lyon. Lindsay Anne Thompson is in-house legal counsel at Georgetown County School District.