This article is the latest in a continuing series of bulletins that Aerlex Law Group is issuing to clients and friends of the firm to provide information regarding the effects of the Covid-19 pandemic on the business aviation community.
Federal and California state labor law regulators agree that employers can require employees to obtain a coronavirus vaccination as a condition of returning to work – with certain limitations.
Both the United States Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have recently provided employers with updated guidance regarding the federal and state laws and regulations governing employees returning to work as the Covid-19 pandemic begins to ebb.
Both the EEOC and DFEH have concluded that employers can insist that employees be vaccinated against the virus that causes Covid-19 as a condition of returning to the workplace so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic and provide reasonable accommodations related to disability or sincerely held religious beliefs.
This means employers must recognize two exemptions that can be claimed: (1) Employee Medical Conditions, or (2) Religious Beliefs.
Some people may be at risk for an adverse reaction because of an allergy to one of the vaccine components or a medical condition. These conditions may qualify as grounds for a medical exemption from Covid vaccination.
The federal Americans with Disabilities Act (“ADA”) allows an employer to establish 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.”
Employers should conduct an individualized assessment of four factors in determining whether a direct threat to others in the workplace 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 Equal Employment Opportunity (“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 Family and Medical Leave Act (“FMLA”) or under the employer’s policies.
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.
Employers may rely on the federal Center for Disease Control (“CDC”) recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but 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.
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.
Some people may decline vaccination because of a religious belief. This is referred to as a religious exemption. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from being vaccinated, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Employees Who Simply Don’t Trust the Vaccine
What about employees who merely do not trust any of the coronavirus vaccines? The DFEH’s new guidance indicates there is no obligation to reasonably accommodate employees whose opposition to being vaccinated is not related to a medical disability or religious beliefs.
Keeping Vaccination Records
How can employers ensure that employees are, in fact, vaccinated? The DFEH’s guidance indicates that employers may require employees to furnish “proof” that they have been vaccinated as part of the vaccine requirement because this is not a disability or religious exemption inquiry or medical examination. However, the DFEH’s Frequently Asked Questions (“FAQs”) caution employers to instruct employees to omit any protected medical information from their documentation prior to submission and for employers to treat these vaccination records as confidential medical records.
You can view more details on California’s new guidelines and FAQs here.
If you need any assistance related to Covid-19 vaccinations or any other employment-related matter, we encourage you to contact Doug Stuart, Aerlex’s litigation and employment counsel, at Dstuart@Aerlex.com.