New York State’s COVID-19 vaccination roll-out plan has reached the level where school personnel are now eligible to receive the vaccine. The availability of the vaccine has raised a number of questions for our clients, which we wish to address herein.
Q1: Can a school district mandate that employees receive the COVID-19 vaccination?
Yes, with certain caveats described below. The Equal Employment Opportunity Commission (“EEOC”) updated its guidance on December 16, 2020 to address issues relating to the COVID-19 vaccination and the Americans With Disabilities Act (“ADA”) and/or Title VII. The EEOC indicated in this guidance that it did not consider the vaccine to be a medical examination, which allows employers to address issues relating to the vaccine and an employee’s vaccine status without ADA repercussions (see Q2 below for qualifications on information to be sought when asking for vaccination status). While the guidance itself is not definitive, it has been read to allow for such policies since it addresses a number of questions relating to workplaces that have mandated policies in place. Further, the EEOC specifically stated that the ADA “allows an employer 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.’” The guidance then discusses under what circumstances an employer could exclude an employee if s/he has not received the vaccination.
Two caveats exist. The first one is likely not an issue for school employers – if the employer will be the entity administering the vaccinations, there may be pre-vaccination medical questions that must be asked to determine if the employee can safely receive the vaccine. In that instance, the employer may learn disability status information, making such an inquiry barred by the ADA.
The second caveat is more of an issue, and relates to Q2 below. There may be individuals who, for either medical or religious reasons, cannot (or will not) receive the vaccination. The EEOC indicated in its guidance document that for employees who claim that there is a medical risk to receiving the vaccine, the employer would need to show that excluding the 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 accommodations.’” The EEOC notes that the number of other employees in the workplace that are vaccinated should be taken into account when determining whether a direct threat to others exists. If the direct threat analysis leads to the determination that one exists, an employer would then need to conduct an “individualized assessment” to determine whether a direct threat exists, taking into account 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. Even if the employer finds that there is a direct threat, the employer still must determine if there is a way to provide a reasonable accommodation rather than simply barring the employee the workplace.
If an employee indicates that s/he is refusing the vaccination on religious grounds, an employer would be required to accommodate the employee unless doing so creates an undue hardship. An individualized assessment of the request and the employer’s obligation to provide a reasonable accommodation must occur under this Title VII based protection. However, the Title VII standard for undue hardship is different that the ADA’s standard, in that the employer only needs to show that providing an accommodation would be more than a “de minimus cost or burden.”
Q2. Can an employer ask for proof of vaccination?
Yes. The EEOC specifically stated that “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” The EEOC does go on to caution that if an employer asks why an employee has not been vaccinated, this could lead to inquiry regarding a disability which is prohibited under the ADA. An employer can only ask questions that may disclose disability-related information if the questions are “job-related and consistent with business necessity.”
Q3. If an employee receives an appointment for vaccination that is during the workday, how does the district account for the time off?
A district can charge the time off for the vaccination process to either personal leave or vacation time for 12 month employees who have such benefits. Districts can also charge sick time if a policy or agreement is in place that would allow for this type of leave for such an appointment. If a district wishes to grant leave time without charge to accruals, our office suggests a short side letter providing for such paid leave, limiting the time off to a particular number of maximum hours and containing language that would limit the side letter to the particular exigent circumstances of the pandemic and this school year.
Q4. Once an employee is vaccinated, are they still required to quarantine and receive the benefits of the New York State leave laws for individuals who have been ordered to quarantine?
To this office’s knowledge, there has been nothing issued by the New York State Department of Health or the Governor’s Office that would limit an order to quarantine to just unvaccinated individuals. At this point in time, an employer should continue to follow the state and local Department of Health’s orders regarding quarantining, and if a vaccinated employee is so ordered, such an order should be followed by the employee.
The New York State leave law that provides for pay without charge to accruals for those employees ordered to quarantine is still in effect. Therefore, if the DOH is continuing to order quarantines for individuals after vaccination, the leave law would still apply.
This is an evolving situation and we will update any information herein should there be any changes to our advice. Should you have any questions about the information contained herein, please contact any of your Keane & Beane school law attorneys.