August 11, 2021 4:37 pm
Just when we thought COVID-19 restrictions would ease, the Delta Variant is causing additional concerns and restrictions. Some cities and counties have re-imposed the wearing of masks regardless of vaccination status. Many public and private employers have mandated employees either become vaccinated or test weekly or more often for COVID-19. Because of the cost associated with testing, some employers are considering compelling all employees to become vaccinated or lose their jobs. The California Department of Public Health has added to the confusion by issuing an Order dated August 5, 2021 compelling the vaccination of employees who work in certain Health Care Facilities.
Privacy Rights. Can a business require proof of vaccination without violating HIPAA or another privacy law? Yes. HIPAA protects the flow of information maintained by businesses in the healthcare and insurance industries. It does not apply to most businesses.
Vaccination status is considered protected health information or PHI. However, even a business in the healthcare industry does not violate HIPAA by asking its employee to disclose vaccination status.
General privacy laws probably do not prevent an employer from asking about vaccination status. Typically, a person’s right of privacy must be balanced against an employer’s right to know. Given the pandemic nature of COVID-19, the many regulations that govern businesses and the workplace, an employer’s right to know vaccination status will probably outweigh any employee’s right to maintain this information as confidential.
Equal Employment Opportunities Law. The EEOC updated its Technical Assistance related to COVID-19 on May 28, 2021. The Agency concluded that equal employment laws do not prevent an employer from requiring its employees to be vaccinated before entering the workplace. Of course, this rule is subject to two exceptions for a medical accommodation or a religious objection.
Individual with a Disability. The Americans with Disabilities Act, or ADA, as well as the California Fair Employment and Housing Act, or FEHA, require an employer to provide a reasonable accommodation for employees who, because of a disability, do not get vaccinated for COVID-19, unless the accommodation creates an undue hardship on the business.
The accommodation process includes a good-faith, interactive discussion to determine possible accommodations. The process can include determining whether it is necessary to obtain supporting medical documentation about an employee’s disability. The process should include a discussion of the laws applicable to the business as well as any a direct threat to the health or safety of co-workers, customers, clients or patients.
Religious Accommodation. The law also recognizes that an employer may be required to provide a reasonable accommodation for employees who, due to a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19.
Historically, federal law has not required much of an accommodation for religious beliefs or practices. Typically, an employer has been required to provide nothing more than a de minimis, or minimal, accommodation. In its Technical Guidance, the EEOC says an employer “should thoroughly consider all possible reasonable accommodations ….” An undue hardship is created if there is “more than a minimal cost or burden on the employer.” Thus, it appears that while an employer should consider all possible accommodations, an employer is not required to make much of an accommodation in either cost or other burdens. By the way, those other burdens might include the percentage of employees who are vaccinated, an employee’s contact with non-employees, and the direct threat to the health and safety of others.
California law under FEHA is similar to Title VII but may be more protective of the employee. In the event of a conflict between the employee’s religious belief or observance and an employment requirement, such as COVID-19 vaccination, the employer must explore “any available reasonable alternative means of accommodating” the employee. The employer must also make reasonable accommodations unless it creates an undue hardship meaning a “significant difficult or expense.”
Asking for Supporting Documentation. Can an employer ask for medical documentation concerning a disability? According to the EEOC, the answer is yes. Most likely, that discussion should focus on the existence of a disability and the limitations imposed by that disability as opposed to the nature of the disability.
Can the employer ask about the nature or sincerity of the employee’s religious belief? Given the ardor with which some persons avoid the COVID-19 vaccination, we expect many employees to find God and fabricate new beliefs. Religious beliefs, which include moral or ethical codes as to what is right or wrong, need not be acceptable, logical, consistent or comprehensible to others. Nor must the belief be espoused by a religious group. Thus, questions related to the truth or logic of a religious or moral code would probably not be appropriate.
However, the sincerity of the belief in that religious or moral code is crucial to an employee’s claim of religious belief. Absent proof of a sincerely held belief, the employee cannot show a conflict between religious observance or practice and the employment requirement. Thus, presumably a discussion as to the employee’s sincerity in a religious or moral code, may take place.
Wrongful Termination. Can an employer fire a worker for refusing to be vaccinated or to engage in periodic testing? The answer is yes in most cases. Typically, employees are not governed by a contract or a collective bargaining agreement that governs the termination process. If a contract of employment does exist, it will be necessary to review the provisions to determine if cause exists. Governmental regulations may supersede contractual provisions and require termination of employment.
In California, employment is presumed to be at-will. This means that an employer can terminate the employment relationship for any reason, no reason, or even a wrong reason. The only exception to at-will employment is public policy. However, we have already discussed how requiring a vaccination does not violate any public policy. Therefore, ending the employment relationship because an employee won’t comply with company policy, and perhaps legal requirements, does not constitute wrongful termination.
Conclusion. COVID-19, and the government’s response to it, has made life in the business world extremely difficult. Conditioning continued employment on vaccination or testing is legal in most circumstances. Exceptions apply in cases of disability or religious objection. The extent of verifying disability or religious belief, as well as when accommodation becomes an undue hardship, can become extremely complicated.
A business must consider many factors when making employment decisions related to COVID-19. Attention to detail, as well as conferring with legal counsel about the details of your situation is critical.
Fishman, Larsen & Callister