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Urgent Updates
Our city is considering a requirement that certain employees,
public safety for example, must receive a COVID-19 vaccination by a certain
date to continue working with the public. If we adopt such a
requirement, how should we handle requests by employees for an exception
based on a disability of some sort?
When to allow exceptions to vaccination requirements is
complicated. Cities should consult with their city attorney before
taking adverse employment actions.
That being said, the U.S. Equal Employment Opportunity
Commission (EEOC) recently updated their COVID-19 technical assistance
Q&A to include helpful questions and answers to many
vaccination-related questions, including this one about disability
exceptions. What follows is quoted directly from the EEOC guidance
related to disability exceptions.
The ADA allows an employer to have a qualification standard that includes
“a requirement that an individual shall not pose a direct threat to the
health or safety of individuals in the workplace.” However, if a safety-based
qualification standard, such as a vaccination requirement, screens out or
tends to screen out an individual with a disability, the employer must show
that 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 reasonable
accommodation.” 29 C.F.R. 1630.2(r). 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. A conclusion that there
is a direct threat would include a determination that an unvaccinated
individual will expose others to the virus at the worksite. If an
employer determines that an individual who cannot be vaccinated due to
disability poses a direct threat at the worksite, the employer cannot exclude
the employee from the workplace—or take any other action—unless there is no
way to provide a reasonable accommodation (absent undue hardship) that would
eliminate or reduce this risk so the unvaccinated employee does not pose a
direct threat.
If there is a direct threat that cannot be reduced to an
acceptable level, the employer can exclude the employee from physically entering
the workplace, but this does not mean the employer may automatically
terminate the worker. Employers will need to determine if any other
rights apply under the EEO laws or other federal, state, and local
authorities. For example, if an employer excludes an employee based on
an inability to accommodate a request to be exempt from a vaccination
requirement, the employee may be entitled to accommodations such as
performing the current position remotely. This is the same step that
employers take when physically excluding employees from a worksite due to a
current COVID-19 diagnosis or symptoms; some workers may be entitled to
telework or, if not, may be eligible to take leave under the Families First
Coronavirus Response Act, under the FMLA, or under the employer’s policies. See
also Section J, EEO rights relating
to pregnancy.
Managers and supervisors responsible for communicating with
employees about compliance with the employer’s vaccination requirement should
know how to recognize an accommodation request from an employee with a
disability and know to whom the request should be referred for
consideration. 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. The prevalence in the
workplace of employees who already have received a COVID-19 vaccination and
the amount of contact with others, whose vaccination status could be unknown,
may impact the undue hardship consideration. In discussing accommodation
requests, employers and employees also may find it helpful to consult the Job
Accommodation Network (JAN) website as a resource for different types of
accommodations, www.askjan.org. JAN’s
materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Employers may rely on CDC recommendations when deciding whether
an effective accommodation that would not pose an undue hardship is
available, but as explained further in Question K.7., there may be
situations where an accommodation is not possible. When an employer
makes this decision, the facts about particular job duties and workplaces may
be relevant. Employers also should consult applicable Occupational
Safety and Health Administration standards and guidance. Employers can
find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
Managers and supervisors are reminded that it is unlawful to
disclose that an employee is receiving a reasonable accommodation or
retaliate against an employee for requesting an accommodation.
Further Updates
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject
here.
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