The COVID Vaccine and the ADA: How to Stay Compliant

As the COVID vaccine becomes more widely available, your organization may be considering mandating vaccinations.  Before you do, brush up on the ADA and the way your COVID vaccination employee policies might overlap.  Reduce your risk for steep fines and legal exposure with advice from MP’s HR services.  

A Refresher on the ADA 

The Americans with Disabilities Act of 1990, frequently referred to as the ADA, was passed to protect people with disabilities from discrimination in employment, programs and activities offered by state and local governments, and in accessing goods and services offered in places like stores, restaurants, hotels, doctor’s offices, etc.  To be ADA compliant, employers will be most concerned with Title I, which protects qualified individuals with disabilities from employment discrimination or from retaliation for asserting their rights under the ADA.  The law applies to employers with 15 or more employees, but it’s worth noting that many states have supplemental laws to protect employees at smaller workplaces.   

Who the ADA Protects 

The ADA protects workers or job applicants who have: 

• physical or mental impairments that substantially limit a major life activity 
• a record of, or are regarded as, having a substantially limiting impairment 

Examples of conditions that qualify under the ADA are: blindness, cancer, diabetes, muscular dystrophy, schizophrenia, autism, depression, and anxiety.   

To be protected under the ADA, the individual must also satisfy the job requirements for their role, including education, experience, skills, licenses, etc.  They must be able to perform the tasks that are essential to the job, whether with or without a reasonable accommodation. (It’s a best practice for employers to have updated job descriptions and identify the essential job functions of every role in the workplace.  HR consulting experts like MP’s can assist in tasks like this.) 

Reasonable Accommodations and the Interactive Process 

The most important part of the ADA is what it requires of employers.  Employers should be ready to provide reasonable accommodations to employees who qualify for and request them.  They should also be ready to engage in the interactive process.  A reasonable accommodation is a change to an employee’s job, the work environment, or procedures that will give them the opportunity for equal employment.  It’s important to note that it doesn’t involve creating a new job, providing aids like glasses, or taking away or reassigning essential job functions.  A reasonable accommodation also cannot create an “undue hardship,” which means it is costly or disruptive to the operation of the workplace.  It must be something that works for the employee and the business.   

The interactive process is the discussion by which the employer and the employee making the request come to the reasonable accommodation together.  It’s a conversation held privately with HR or trained managers, and it focuses on exploring what options are best for all sides.  The employee’s initial request does not have to be granted if there are better options for the sake of the employer (yet still assist the worker).   

The ADA and COVID Vaccination Policies 

Employers who decide to create a mandatory COVID vaccination policy should be aware of how the ADA might be applicable in their compliance.  Firstly, the ADA does not bar some employers from making a mandatory vaccination policy.  Generally, medical offices will be able to create a policy because they can make a case for unvaccinated workers being a danger to themselves, coworkers, patients, clients, etc.  (For other businesses that cannot make this case, the Equal Employment Opportunity Commission (EEOC) suggests that they simply encourage their workers to get the vaccine.)  

The ADA also doesn’t bar some employers from requiring the COVID-19 vaccine because it doesn’t count as a “medical examination” under the ADA.  Vaccination policies won’t seek information about a worker’s physical or mental health.  It is worth noting that prescreening vaccination questions may violate this tenet, though.  In this case, employers should let their staff know they are not required to provide medical information.  Likewise, asking for proof of a receipt of a COVID vaccination won’t conflict with the tenets of the ADA.  This is because the request is unlikely to elicit information about a disability.  If employers ensure questions about a COVID vaccination are job-related and about this very specific query, they won’t run afoul of the ADA.   

Besides the ADA, employers who find it necessary to create a mandatory COVID vaccination policy may be interested to know that it does not violate title II of the Genetic Information Nondiscrimination Act (GINA).  This is because it won’t involve genetic information to make employment decisions or decisions about the terms, conditions, or perks of employment.  As noted above, prescreening questions may potentially run afoul of GINA, though.  Employers should examine them for this reason and let employees know they don’t need to provide medical information.  

Compliance Concerns for the ADA and COVID Vaccination Policies 

Though vaccination policies don’t inherently create many concerns for compliance, they can when implemented improperly.  One tricky situation is when a worker requests an exemption from a vaccination policy because of a disability.  Their workplace must avoid ADA discrimination by conducting a test to determine if the unvaccinated worker would pose a direct threat.  This test has 4 factors: the duration of the risk, the severity of the risk, the plausibility the harm will occur, and imminence of the harm.  If the worker does pose a direct threat, the employer needs to engage in the interactive process with the employee to attempt to find an accommodation.  If none can be found, the employer can ask the worker to operate remotely, take leave, etc.  They cannot just fire them.  They also cannot retaliate against the worker for asking for the accommodation, nor can they share the details of the request or interactive process with anybody else.  The best response from an employer in this situation is to find a kind of leave that would be applicable.  This may be sick leave, a leave using PTO time, an unpaid leave of absence, or something else.  

The best practice for creating a mandatory COVID vaccination are to build one based on mandatory flu vaccination policies.  Workers should be allowed exemptions or accommodations based on medical reasons (like allergies) or religious reasons (since Title VII of the Civil Rights Act of 1964 protects workers in these kinds of scenarios).  The policy should:  

• Provide exceptions under state and federal laws, as some states (like California and New York) have developed laws that protect workers’ rights during the pandemic 
• Be job-related 
• Lay out the business necessity for people’s vaccination

COVID-19 and ADA Resources 

Here are a few websites that may be helpful for employers as they navigate implementing (or choosing not to implement) a mandatory COVID-19 vaccination.  Organizations could also consider reaching out to MP’s HR Services team for expert consulting on these complicated topics.  

The Job Accommodations Network (JAN) 

The EEOC’s COVID resources page 

MP’s COVID resources page 

Some Commonly Asked Questions about COVID Vaccination and the Workplace 

Q: Can an employer tell their workers that they’d like to require them to get vaccinated, then ask them all if anyone objects?

A: MP’s HR team doesn’t recommend doing this as a blanket conversation.  It’s better to create and share a policy that is built on a mandatory flu vaccination policy.  If you’re requiring workers to be vaccinated, you’ll need to spell out the process for requesting an accommodation or exemption as part of that policy.  Ideally, workers who want an accommodation would speak to somebody in the HR department, rather than managers who are untrained on the interactive process.  

Q: Would a leave of absence that’s taken if a worker can’t be vaccinated be covered under FMLA?

A: This is unlikely because it’s not an active illness or situation where someone is pregnant.  If, for example, a worker cannot take the vaccine because they have MS and their MS medication might interact poorly with the vaccine, this still wouldn’t count for FMLA leave.  It’s the medication that is creating the issue, not the illness itself.   

Q: Would it be discriminatory not to hire an individual because they refuse the vaccination? Would we still be expected to make reasonable accommodations if they are not on our payroll yet? 

A: The answer to that is essentially yes.  The ADA doesn’t just protect employees, it also protects applicants. If you have somebody who shares during an interview that they have a condition that prevents them from getting vaccinated, and subsequently you do not hire that individual, you may be discriminating against them under the ADA.   In that case, there is an opportunity to engage in that interactive process to decide how you could best accommodate that individual. If you’re not going to be hiring that individual because there are more qualified candidates, that’s different. But it is important to understand that the ADA applies to applicants as well as current employees.   

Q: What are appropriate ways that companies are incentivizing their employees to get their shots?

A: We would caution against incentivizing workers to get the vaccination because it could be unfair to, or potentially discriminatory to, particular groups. For example, if a particular group of employees who, based on disability or a religious belief, cannot take the vaccine, then you’re disproportionately impacting those individuals in a negative way. While incentivizing might sound like a good idea, it could result in a discrimination suit.  

Q: Can employees sue their employer if they got COVID at the workplace?

A: There hasn’t been much of a precedent set yet for cases like this.  It’s very difficult to determine where somebody got COVID because it’s so widespread and there are some new variants that are very transmissible.  As an employer, if you are not following the guidelines of the state, providing PPE, cleaning and sanitization, etc., this might make you more vulnerable to a lawsuit.  If you’re concerned about this, we recommend that you speak with an employment attorney to determine whether your policy is going to is going to protect you as an employer.