The availability of a COVID vaccine has been heralded as an important step in returning the country to “normal.”

Widespread accessibility probably won’t be seen until this summer, but there is some good news: A recent study conducted by Pew Research shows that more than 60% of Americans say they probably or definitely will get vaccinated. Of course, that mean almost 40% said they probably or definitely won’t.

These numbers will have an impact on how employers craft plans and policies for getting employees back to work and keeping them safe, including determining if they should require employees to get vaccinated.

The U.S. Equal Employment Opportunity Commission’s guidance on mandating vaccines was developed in 2009 during the H1N1 pandemic. Throughout 2020, updates were made to reflect the COVID crisis.

Terry Bonnette, a partner with Nemeth Law in Detroit, said those guidelines haven’t fundamentally changed.

“This is our third pandemic in the past 20 years. Obviously, this one is significantly worse than the other two, but this isn’t the first time this issue has been addressed,” he said.

Per the EEOC guidelines, any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration is not a medical exam under the Americans with Disabilities Act. That means it can be administered by an employer or administration by a third party can be required.

But some exceptions exist, as federal equal opportunity laws provide protections for employees even in the face of a pandemic or national health crisis.

Tad Roumayah, a senior shareholder with Sommers Schwartz in Southfield, said certain employees have the right to decline COVID-19 vaccination, even if their employer has a mandatory vaccination policy.

“Although the EEOC clarified that employers may implement mandatory COVID-19 vaccination policies, there are civil rights exceptions, especially where employees are unable to receive a COVID-19 vaccine because of a disability or because of a sincerely held religious practice or belief,” Roumayah said. “In other words, an employer’s desire to vaccinate its entire workforce does not eclipse certain employees’ civil rights to deny the vaccine.”

And while vaccination itself does not implicate the Genetic Information Nondiscrimination Act, or GINA, certain prescreening questions will.

Anne-Marie Welch, a member in the Birmingham office of Clark Hill, said employers who are thinking of rolling out a vaccine mandate should make sure they have an appropriate form to capture the exceptions available to employees.

“If they do mandate that an individual receive the vaccine, the EEOC encourages employers to have the employee show proof of the vaccination without the other medical screening questions,” she said. “That way, employers are not gaining information about an individual’s possible medical condition, genetic information or disability.”

‘Direct threat’

Employers also have to decide if it’s likely that an unvaccinated employee would constitute a “direct threat” to the health and safety of a workplace.

According to the EEOC, COVID-19 meets the definition of a direct threat, and employees have a right to be in a safe and healthy work environment.

“What we’re looking at is, ‘Does an employee who has not been vaccinated pose a direct threat to the health and safety of their coworkers or the general public?’ And I think when you’re at the height of a pandemic, it’s a solid argument to make that, yes, that person does pose a threat,” Bonnette said.

If an employee says she can’t be vaccinated due to a disability, employers have to look to the ADA to decide if the threat can be reduced through reasonable accommodations.

“The issue then becomes, ‘What’s the appropriate accommodation?’ When something poses a direct threat to the workforce you don’t necessarily have to accommodate for it,” Welch said. But “an employer can only terminate an employee if it can show that the 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 an accommodation without due hardship.”

If there is no appropriate accommodation that wouldn’t cause an undue burden, then an employer doesn’t have to provide it, and an employee could be excluded from entering the workplace.

“However, given that we have been allowing employees to work for months by wearing masks and utilizing social distancing or working from home, it will be harder to argue that employee cannot be accommodated without undue burden,” Welch pointed out.

Roumayah echoed these thoughts.

“Even if the ‘direct threat’ posed by an unvaccinated employee cannot be reduced to an acceptable level through a reasonable accommodation, it does not mean that the employer can automatically terminate that employee,” he said. “The employee may be entitled to other reasonable accommodations, such as working from home like we’ve all been doing for the past several months.”

Flexibility will be required by both employers and employees to figure out suitable and successful accommodations. In the end, there may be a variety of options available, but employees are not entitled to the accommodation of their choosing.

As the state and the country move closer to having everyone immunized, the day will come when pandemic conditions no longer apply. Small numbers of individuals in the workplace who didn’t get the vaccine won’t create a direct threat to health and safety.

“Where is that tipping point? Employers are going to be permitted greater flexibility in responding to a pandemic than they may be allowed when responding to less immediately threatening conditions,” Bonnette said. “So, what is acceptable today may not be acceptable a year from now.”

Getting on board

Getting a shot isn’t a big deal for many people, but it goes beyond unpleasant for some.

In fact, in some instances, anxiety could be considered a disability under the ADA. In a 2018 case, the 3rd U.S. Circuit Court of Appeals said an employee’s ADA claim was improperly dismissed in part because the employee suffered from “severe anxiety” about a vaccine’s potential side effects (Ruggiero v. Mount Nittany Med. Ctr., 736 Fed. Appx. 35).

Welch said labor shortages have been a big issue throughout the pandemic, and fear may be part of the reason why. But employers can take steps to address that.

“OSHA said at the beginning of the pandemic — and I think it’s still applicable today — that being transparent with your workforce is the number one way to prevent absenteeism based on fear of contracting COVID in the workplace,” she said. “Part of that transparency is educating the workforce about the benefits of receiving the vaccine and the importance of stopping the spread of COVID.”

Welch added that Michigan’s health agencies and other organizations have been providing a lot of resources about the benefits of receiving the vaccine and how the benefits outweigh the risks. Reusing some of that information is something employers could do to encourage their employees to get the vaccine.

“You want to instill trust in your workforce,” she said. “Show your employees that you’re creating a safe space for them to work in. If you do that there’s less of a chance that they’re going to not want to come to work for fear of contracting COVID.”

Bonnette agreed.

“It’s education, knowledge and demonstrating the benefit. There are all sorts of alternatives to disciplinary action,” he said. “Any time you can use a carrot as opposed to a stick you’re going to get more buy in.”

Employers can offer incentives for employees to get vaccinated, but they need to be careful that they are not discriminatory.

“They … need to look at if the incentive to get immunized qualifies as a wellness plan under either GINA or the ADA, then they need to make sure the incentives being offered meet the requirements under those two acts,” Bonnette said.

Because mandating the vaccine puts employers in a difficult situation of offering employees only two possible reasons for declining — a sincerely held religious belief or a disability — Roumayah believes most employers will elect to encourage vaccines rather than require them.

If an employer does mandate the vaccine, it becomes a term and condition of employment.

That means that “even if you’re not a unionized workforce, if your employees band together and engage in protected and concerted activity to oppose the mandate, you can’t take adverse action against them,” Welch said.

Bonnette added, “The National Labor Relations Act applies to all employers whether they have a union or not. Employees have a protected right to engage in concerted activity. Any time that employees act together to address a workplace concern there’s a possibility that it invokes the protections of the NLRA.”

EEOC guidance

In December 2020, the EEOC provided updated and expanded information to address questions about federal equal opportunity laws associated with the pandemic.

The EEOC’s publication, “What You should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,”was revised to give employers and employees information about how vaccinating for COVID-19 relates to legal requirements set forth under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act.

These materials address COVID-19 and anti-discrimination laws enforced by the EEOC, while the U.S. Department of Labor handles questions about wage and hour issues, the FLSA, the FMLA, OSHA, unemployment compensation, and the Families First Coronavirus Response Act.

Also on the EEOC’s website is the “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” issued in 2009 during the spread of H1N1 virus. This document was reissued in 2020 to include updates for the COVID-19 pandemic.

Finally, the EEOC website provides practical tips and resources for employers, including employer checklists, chart of harassment risk factors and how to respond to them, and harassment policy advice.