Many American employers are hoping to re-open their workplaces now that COVID-19 vaccines have become more available across the U.S. As they consider whether or not to require their employees to get the vaccine before returning to work, there are a host of potential legal risks that need to be addressed. They can range from potential violations of the Americans with Disabilities Act (ADA) to guarding against workplace discrimination in the treatment of non-vaccinated employees.

To help employers understand these complex risks and shifting rules, Newfront recently sponsored a webinar that included partners from Cigna discussing the vaccine and two employment law experts from its partner Associated Industries. During the second half of the webinar, legal experts discussed what’s involved in requiring vaccinations by returning workers, the important exemptions to that requirement, and the steps companies should take to prevent exposure.

Relaxed Rules – With Exemptions

Under normal circumstances, federal law says employers aren’t allowed to conduct medical examinations of their employees or ask them about medical matters, unless it’s directly job-related. But the EEOC considers COVID-19 to be a “direct threat” – which means it poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation,” said panelist Jennifer Hanson, who is Legal Counsel for Associated Industries.

That designation gives a company more leeway when it comes to vaccinations. The EEOC has said a company may require its employees to get COVID-19 vaccinations before coming back to work. The federal agency has also said employers may even ask employees to provide proof they’ve been vaccinated.

It doesn’t give employers a blank check, however.

Some states may forbid either or both requirements – and numerous laws have been proposed that strengthen these prohibitions. In addition, there are important federal exemptions that can put employers at risk if they aren’t recognized. The Americans with Disabilities Act (ADA) provides an exemption for people who have a medical condition or a disability that prevents them from receiving vaccination. Title Seven of the Civil Rights Act provides a similar exemption for people with a sincerely held religious belief that prevents them from receiving a vaccination.

In general, employers need to allow employees to self-attest that they are entitled to either exemption. And if an employee says they don’t intend to be vaccinated and won’t provide proof, employers also need to be careful not to ask “why not” in a way that would potentially be a medical inquiry that’s not allowed, Hanson said.

If the company keeps some proof of vaccination on file, they now have a record that’s protected under the ADA and medical privacy laws and needs to be stored securely and separate from the rest of an employee’s personnel file.

Providing Accommodations

In the case of employees who claim an ADA or religious exemption, an employer can’t use that as a reason for termination or other punitive measures. In fact, the employer has an obligation to provide an accommodation for both types of employees that allows them to continue doing their job.

“There are lots of different types of accommodations that can work, depending on your type industry,” Hanson said. “The employee could continue to wear a mask, depending on what your local laws are with respect to mask wearing. Or the employee, perhaps, could work in an area that’s less populated, and so they’re not coming into contact with other individuals.” For workers where an onsite accommodation isn’t possible, then remote working is another possible solution.

The exception to this is when doing so would result in an undue hardship to the company. The definition, however, is very different depending on the governing law. For ADA exemptions, the undue hardship bar is quite high for the company; it can’t simply involve cost. The change would have to be considered substantial or disruptive to the business, or would somehow change the fundamental nature of the business. For religious exemptions, the rules are somewhat more lenient.

Be on Alert for Discrimination

The pandemic has been stressful for employees for the past year. When employees respond to increased workplace stress with racial or other discriminatory animus against co-workers, that behavior can create a hostile work environment that negatively impacts the work environment and poses a legal risk for the employer.

The virus’ origins in China have resulted in a significant backlash toward Asian Americans in the workplace, said panelist Angela Hayes, Senior Legal Counsel, Associated Industries. There’s also potential that accommodations provided to employees who cannot be vaccinated due to a religious or medical disability exemption may lead other employees to behave in ways that constitute discrimination. It falls on the employer to prevent or remedy a hostile workplace environment if these situations occur, so this is an ideal time for the employer to review and revise if necessary, its Unlawful Discrimination and Harassment policy and provide training to supervisors, managers, and employees.

Offering Incentives

Employers may also face legal risks if they offer incentives to employees to get vaccinated. If the vaccine is offered through an employer wellness program, participation must be “voluntary” and per EEOC rules, incentives to participate in a wellness program can only be “de minimus,” such as a water bottle or small gift card of nominal value. More generous incentives for participation in a wellness program, such as high-dollar cash awards or extra hours of PTO, may violate EEOC rules because those incentives appear to be coercive. On the other hand, generous incentives provided to employees who are vaccinated by their own health care provider or a pharmacy may not violate EEOC rules for wellness program incentives, but may give rise to ADA discrimination claims by employees who cannot be vaccinated due to a medical exemption or religious objection, since those employees would not be able to access that incentive offered solely for vaccination.

Another potential area of liability for employers arises when an employee has an adverse reaction to a COVID-19 vaccination. Depending on whether the employer required employees to get the vaccine, there could be potential for a worker’s compensation claim, Hayes said.

This remains a complex area involving federal law, EEOC regulations, and a patchwork of state and local laws. The law continues to develop, and employers should keep in close consultation with their employment counsel and benefits partners to ensure their policies are aligned with any changes.