By Rachel Shaw
Principal, Shaw HR Consulting
February 11, 2021
The U.S. Food and Drug Administration (FDA) has granted two Emergency Use Approvals for the first set of COVID-19 vaccines. With the vaccine being rolled out to the public, employers face a number of questions. Can an employer mandate its employees be vaccinated? What if an employee refuses? Must an employer provide medical and/or religious accommodations? What other issues should employers consider?
In the past, Occupational Safety and Health Administration (OSHA) and other various State and local organizations have provided guidance on and even mandated vaccines however, none have issued direction or requirements related to COVID and vaccines. As of today, the U.S. Equal Employment Opportunity Commission (EEOC) is the only entity that has offered guidance on COVID vaccines specifically. They released this guidance on December 16, 2020.
The EEOC suggests employers will likely be able to mandate vaccinations, with exceptions. Those exceptions relate to if an employee has a medical condition or sincerely held religious belief that precludes them from being able to be administered a vaccination.
Disability-Related Reasonable Accommodations and Vaccines
The EEOC directly addresses how an employer should respond if they are requiring employees to be administered the COVID vaccine, and an employee indicates that he or she is unable to receive it because of a disability. The EEOC’s direction outlines a very specific process to first assess if a direct threat exists:
“… Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
The EEOC then provides direction on how to proceed if a direct threat does exist, which is to employ the ADA disability interactive process with the employee to explore if reasonable accommodations exist:
“ Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.”
Bottom line is, if you will be requiring employees to be vaccinated, you will need to conduct the interactive process for any individuals who inform you that they cannot be administered the vaccine for a personal medical reason. For these employees, follow the Shaw HR Consulting Disability Interactive Process HallwayTM which includes four steps or “doors.” Start at Door #1: obtaining medical information. You may want to consider using a medical questionnaire to gather information including additional information related to understanding if the employee’s health care provider believes it would be safe for the employee to return to the workplace without the vaccine with or without accommodations or personal protective equipment (PPE).
Once medical clarification is gathered, proceed to Door #2 and work to research options if the employee is not vaccinated – can they work from home temporarily, is leave needed, can they work in the workplace with PPE? Once options are explored go to Door #3 and schedule a virtual meeting and invite the right people to attend. Prepare notes for the meeting, meet to discuss if there is a “direct threat” safety risk to them continuing to work in the office, and/or if they can work from home or be provided with leave. Make decisions in this meeting, take meeting notes and have attendees sign them. Do what you said you’d do at Door #4 and complete any final steps needed.
Be ready to regularly reassess your program(s) related to vaccines as additional guidance may change how employers manage COVID vaccine requirements. And, as always be sure to confer with your legal counsel before implementing any new program.
For more information on reasonable accommodation requests related to COVID-19 visit Shaw HRC’s free resource page at: www.shawhrconsulting.com/covid to find complimentary materials including flowcharts, sample scripts, template letters and questionnaires, FAQs, video training and more.
 Please note this is a brief excerpt from the answer to K.5. and the entire answer as well as all of “Section K: Vaccinations” should be reviewed at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws