At present, two COVID-19 vaccines have received an emergency use authorization (EUA) from the U.S. Food and Drug Administration (FDA): one manufactured by Pfizer and another manufactured by Moderna. A third vaccine candidate from Johnson & Johnson has submitted its paperwork to the FDA and may receive an EUA by early March.
As more COVID-19 vaccines are approved and made available to willing recipients, there will be increased discussion around whether, when and how contractors might require their employees to be vaccinated.
The guidance put out by SMACNA in December 2020 continues to be relevant regarding the need to have a clearly articulated vaccine policy in place to limit vaccination requirements to business necessity, and provide a mechanism for accommodations to be requested by employees. Contractors or the chapter will also likely need to bargain with the union before requiring vaccinations for the unionized workforce.
However, at this time, the vaccine remains under EUA. The vaccine must receive full FDA approval and sufficient doses must be available to workers before a mandatory vaccination policy may be put in place.
The EEOC’s latest guidance on three important issues related to the extent to which employers may require vaccines and question employees on their vaccine status are important considerations for contractors developing a vaccine policy.
First, the EEOC made clear that requiring employees to be vaccinated (or administering a vaccine) is not a “medical examination” under the ADA. The EEOC reasoned that 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.”
However, the EEOC also opined that pre-screening questions before receiving the vaccine are likely to elicit information about a disability and are therefore disability-related inquiries. Despite declaring COVID-19 a direct threat, the EEOC does not give employers a blanket pass to make these inquiries.
Rather, the EEOC requires that the inquiry be “job-related and consistent with business necessity,” which means that the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and therefore does not receive a vaccination, will pose a direct threat to the health or safety of herself or himself or others.
The EEOC notes two exceptions to the “job-related and consistent with business necessity” requirement : (1) if a vaccine is offered to employees on a voluntary basis, and the decision to answer pre-screening, disability-related questions is also voluntary; and (2) if an employee receives the vaccine from a third party that does not have a contract with his or her employer.
On the other hand, the EEOC said that requesting proof of receipt is not likely to elicit information about a disability. This means that it should not violate the ADA for an employer to require employees to obtain a vaccine from an independent provider and present proof of the vaccine. The EEOC notes, however, subsequent questions, such as asking “why” an individual did not receive a vaccination, may elicit information about a disability and would be subject to the “job-related and consistent with business necessity” standard outlined above.
In addition to federal laws, contractors will need to ensure that they comply with any state and local requirements as well. Therefore, contractors should consult with their own legal counsel in developing a vaccine policy.
For more information about the vaccine policy, contact Joye Blanscett, Director of Labor Services and Human Resource Management, at firstname.lastname@example.org.