Over the past several months, businesses across the country have seen an increasing number of non-essential workers return to the workplace. Several weeks ago, the Occupational Safety and Health Administration (OSHA) issued its emergency temporary standard (ETS), which applies to the health care industry, as well as an updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“OSHA Guidance”).
The OSHA Guidance recognizes that under most circumstances outside of the health care industry, fully vaccinated people do not need to take all of the COVID-19 related precautions that unvaccinated people should take. The mask wearing, distancing, and screening procedures that were common six months ago, are no longer necessary for the majority of employers who have fully vaccinated workforces.
However, throughout Mississippi many workplaces still have large numbers of unvaccinated individuals. Individuals with pre-existing conditions may be at greater risk from exposure to COVID-19 and OSHA still requires employers to provide a work environment that is free from recognized hazards that cause, or are likely to cause, death or serious physical harm. OSHA and CDC guidelines continue to recommend employers take steps to protect unvaccinated or otherwise at-risk workers in their workplaces. Regardless of individual employees’ personal preferences, employers are permitted to institute mandatory vaccination requirements provided the requirement is job-related and consistent with business necessity. Furthermore, employers are permitted to provide information to employees in order to educate them about COVID-19 vaccines and employers may take action to raise awareness about the benefits of vaccination.
There are also circumstances where an employer may offer incentives to employees who receive COVID-19 vaccines. (If incentives are offered, they must be minor. Any incentive that is significant enough to be considered “coercive” is not permissible.) Workplace policies may be implemented to protect unvaccinated or otherwise at-risk workers and to mitigate the spread of COVID-19. Provided these policies do not discriminate against individuals with disabilities or against individual or group of individuals because of their membership in any other protected class, the policies may differentiate between vaccinated and unvaccinated employees.
If an employer requires vaccinations, it is recommended they have a policy in place which addresses when exemptions may apply and how an employee can request an exemption. Both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act provide for accommodations and/or exemptions from vaccination in certain circumstances.
For those who have a disability which precludes vaccination, employers must accommodate the individual unless doing so would pose a direct threat to the health or safety of those in the workplace. In those situations, an employer should consider whether a reasonable accommodation could be provided which would reduce or eliminate the threat. Similarly, in situations where an individual who is fully vaccinated continues to have a heightened concern about contracting COVID-19 because of an underlying disability that puts them at a heightened risk of severe illness from an infection, employers should also consider reasonable accommodations.
Reasonable accommodations are never one size fits all. As with any ADA accommodation request, if an individual is seeking exemption from an employer’s mandatory vaccination policy, the parties should engage in an interactive process to determine if there is a disability-related need for an accommodation and whether workable accommodations can be implemented without causing an undue hardship on the employer. This process typically includes seeking information from the employee’s health care provider after gaining the employee’s consent.
The health care provider can verify the existence of a qualifying condition and assist with explaining the types of policy-modifications that could be helpful for the employee. While many accommodations can be as simple as requiring the employee to wear a mask while at work or permitting telework, sometimes one of the parties will have an idea for accommodation that has not previously been considered. A person’s religious belief, practice or observance may also preclude them from obtaining a COVID-19 vaccination. As the U.S Equal Employment Opportunity Commission (EEOC) has recognized, employers may also receive religious accommodation requests from employees who cannot be vaccinated because of a sincerely held religious belief or because their religious practices or observances cause them to wish to wait until an alternative version of the COVID-19 vaccine is available. In these situations, the law allows for a religious exemption. To receive a religious exemption, an employee must show that they have a sincerely held religious belief and that if they were exempted from the vaccination requirement, it would not impose an undue hardship on the employer.
As one would expect, there are numerous caveats associated with the implementation of COVID-19 policies in the workplace and the appropriateness and implementation of those policies. While OSHA and the CDC have provided guidelines for businesses, other laws such as the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA) also come into play. To assist in navigating these laws, the EEOC has issued updated technical assistance regarding COVID-19. This updated assistance provides detailed information about the application of these laws to employer vaccination requirements and incentives, as well as tools to assist in navigating through the accommodation process, whether the process is related to an ADA request or due to a sincerely held religious belief. In addition, the updated assistance addresses vaccination programs administered by an employer or agent of the employer and associated restrictions.
While the EEOC’s updated technical assistance was issued in late May, it is expected the guidance will continue to evolve in light of new CDC recommendations. Likewise, OSHA and CDC guidelines will also continue to evolve. Businesses and their employees should expect these changes as we learn how to better manage the impact of COVID-19 in our communities.
Links to the cited material herein can be found on my Firm’s website at https://www.bpislaw.com/blogs/litigation-blog.