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COVID-19 Vaccinations and Your Employment

Health & Benefits

On December 11, 2020, the FDA issued the first emergency use authorization for the Pfizer BioNTech COVID-19 Vaccine for the prevention of COVID-19 in individuals 16 years of age and older. On December 14, 2020, the U.S. began administering the vaccine to the public. The Texas Department of State Health Services has issuesd the statement that the initital supplies of the COVID-19 vaccine should be allocated to healthcare workers, Texans over the age of 65, and people with medical conditions that put them at a greater risk of severe disease or death from COVID-19. Additional vaccines are undergoing clinical trials, and supplies will increase over time. All adults should be able to get vaccinated later in 2021. 

As COVID-19 vaccines become available, many employers may decide to implement policies requiring all workers to be vaccinated before coming back to work. In general, employers may implement a mandatory vaccination policy as long as the policy is job-related and consistent with business necessity, and provides for exemptions based on an employee’s covered disability or an employee’s sincerely held religious beliefs.

 

Is the COVID-19 vaccine mandatory?

No, the vaccine is not going to be required by the state government. Texas Governor Abbott has said, “the Lone Star State is prepared to swiftly distribute” the vaccine “to those who voluntarily choose to be immunized.” 

However, employers may choose to implement mandatory vaccination policies, provided that such policies comply with federal, state, and local rules. However, your decision as to whether to get the COVID-19 vaccine is a personal one, and one that should be made after consulting with your health care provider. Read more about the COVID-19 Vaccine on the CDC’s website and the FDA’s website.

 

 

How is this related to the Americans with Disabilities Act (ADA)?

An employer that is implementing policies regarding mandatory vaccinations must follow the Americans with Disabilities Act (ADA). The ADA applies to private employers with 15 or more employees and to most government employers, employment agencies, and labor unions. The ADA may also apply to employers with 15 or less employees if that employer receives federal funds.

The ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. A mandatory vaccination policy may implicate provisions of the ADA, which has restrictions on when and how much medical information an employer may obtain from an applicant or employee.

 

Can my employer require me to get the COVID-19 vaccine before physically returning to work?

Generally, yes. Employers may implement a mandatory vaccination policy as long as the policy is job-related and consistent with business necessity, and provides for exemptions based on an employee’s covered disability or an employee’s sincerely held religious beliefs. Employers are not required to accommodate secular or medical beliefs about vaccines. For more information on mandatory vaccination policies, read Section K of the EEOC’s Guidelines on the ADA and Vaccinations.

 

 

Can my employer ask about my medical history before requiring me to receive a vaccination?

The CDC recommends that health care providers should ask certain questions before administering the vaccine to ensure there is no medical reason that would prevent a person from receiving the vaccination. Such pre-screening questions, if asked by the employer, are likely to elicit information that are “disability-related” under the ADA. Indeed, the ADA has restrictions on when and how much medical information an employer may obtain from an applicant or employee. 

Therefore, if an employer requires you to receive a vaccination that is administered by your employer, the employer must show that these disability-related pre-screening questions are “job-related and consistent with business necessity.” However, there are two exceptions where the employer does not have to satisfy the “job-related and consistent with business necessity” standard. 

First is when your employer offers vaccination to its employees on a voluntary basis. If vaccination is voluntary, then the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. 

Second, if an employee receives an employer-required vaccination from a third party who does not have a contract with the employer, such as a pharmacy like CVS or Walgreens, or other health care provider, the “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-screening questions for the vaccination. Such questions will likely be asked by the pharmacy or health care provider administering the vaccination. However, the pharmacy or health care provider may choose not to administer the vaccine should the employee decline to answer the pre-screening medical questions. Your answers to any pre-screening medical questions, including your refusal to answer any such questions, will not be shared with the employer. Privacy laws preclude health care providers from disclosing private and confidential medical information to anyone without authorization. Moreover, any medical information shared by you to your employer is also protected by the same privacy laws and other federal, state, and local laws.

 

Can my employer ask pre-vaccination screen questions about my genetic information, such as questions regarding the immune system of family members before I get the vaccine?

The EEOC has stated that administering the COVID-19 vaccine to employees or requiring proof of vaccination from employees does not implicate Title II of the Genetic Information Nondiscrimination Act (GINA). However, as stated above, pre-vaccination medical screening questions are likely to elicit information about not only a person’s disabilities, but also their genetic information, such as family members’ medical histories, which would violate GINA. 

 

GINA does not prohibit an individual’s own health care provider from asking questions about genetic information, but does prohibit an employer or a health care professional working for the employer from asking questions about genetic information.

 

 

What are my rights if my employer requires a COVID-19 vaccine when it is available to the general public, but I don't want to or am unable to receive the vaccine due to a disability?

Under the ADA, employers are permitted 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.” Since a vaccination requirement may screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

In other words, if you’re unable to get vaccinated due to a disability, and the employer concludes that you would pose a direct threat to the health or safety of yourself or others, then your employer should determine whether you may be entitled to a reasonable accommodation such as allowing you to perform your job remotely. This is the same type of analysis that employers make when physically excluding employees from a worksite due to current COVID-19 diagnosis or symptom. While some workers are entitled to work from home, others may not be able to do so. You should ask your employer what you need to do and if a reasonable accommodation can be made for you. 

If your employer cannot provide a reasonable accommodation because it would be too difficult or expensive (i.e., unduly burdensome), then your employer may exclude you from physically entering the workplace. However, the employer may not automatically terminate your employment. Those who are unable to work remotely may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), under the FMLA, or under the employer’s policies such as paid or unpaid leave.

 

What are my rights if my employer requires a COVID-19 vaccine when it is available to the general public, but I don't want to or am unable to receive the vaccine due to my sincerely held religious practice or belief?

Once you notify an employer that your sincerely held religious belief, practice, or observance prevents you from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless such an accommodation would pose an undue hardship under Title VII of the Civil Rights Act. 

In general, employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious held belief. If, however, an employee requests a religious accommodation, and the 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.

 

What if my employer cannot exempt or provide a reasonable accommodation to me because of my inability to comply with a mandatory vaccine policy due to a disability or sincerely held religious practice of belief?

If you are unable to get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from physically entering the workplace. This doesn’t mean that the employer can automatically terminate the worker. Employers will need to determine if there are other rights that apply under the EEO laws, or other federal, state, or local authorities.

 

 

 

Can my employer require proof of the COVID-19 vaccine before I may return to work?

Yes, your employer may require proof of vaccination before you are permitted to return to work. Of course, any requests by your employer must be job-related and consistent with business necessity. Your employer may not require your private genetic information as part of the proof.

If you choose to receive the COVID-19 vaccine when it is available to you, you should receive a vaccination card, which can serve as proof of your vaccine. The main purpose of the vaccination card is to allow you to keep track of which vaccine you received, the dosage you received, and the dates of each dosage. It will also serve as a good reminder of when you will need to get the second dosage, which is typically three weeks from the date of the first dosage. 

It is good practice for individuals to keep track of their immunization records. The CDC has  information on Keeping Track of Your Immunization Record.

Additional Information

Disability Rights Texas has compiled additional resources on the vaccine here.

Disability Rights Texas is now assisting Texans with disabilities who need information about the vaccine or are having trouble getting it through our new Vaccine Access Program. Read more here. View the flyer.