North Dakota Insurance Reserve Fund - Blog

Provided by Brian D. Schmidt, Attorney at Law and partner at Smith Porsburg Schweigert, Armstrong, Moldenhauer & Smith

The COVID-19 pandemic has altered the way many entities conducted business over the past year. Recently, various COVID-19 vaccines have become available and as of February 27, 2021, the Food and Drug Administration (“FDA”) issued an emergency use authorization (“EUA”) for a third COVID-19 vaccine. Employers should beware that it is currently not settled as to whether COVID-19 vaccines can be mandated as a condition of employment while they are approved on an EUA basis. While the U.S. Equal Employment Opportunity Commission (“EEOC”) appears to imply, but not explicitly state, that employers may be able to mandate vaccinations, the Food and Drug Administration (“FDA”) has an obligation to ensure recipients of a vaccine under an EUA are informed “that they have the option to accept or refuse the vaccine… .” This could open the door for litigation if an adverse employment action is taken against any individual who refuses to take the vaccine while it is subject to an EUA.

Nonetheless, the EEOC issued guidance to employers with respect to issues that may arise under Title VII of the Civil Rights Act (“Title VII”) and the Americans with Disabilities Act (“ADA”) with respect to COVID-19 vaccinations. As with most employment issues, there is no definitive roadmap and every issue will need to be analyzed on its own facts and circumstances.

For example, if an employee claims they cannot be vaccinated due to a disability, the EEOC warns against automatically terminating the employee. Per the recent EEOC guidance, if a “vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an 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 accommodation.”’ Showing an unvaccinated employee poses a “direct threat” may be difficult to prove depending on the nature of the employee’s job and working conditions.

Further, the EEOC also warns that “[i]f an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” This same analysis applies for employees who provide notice that they are prevented from receiving the vaccination because of a sincerely held religious belief or pregnancy. Put simply, before taking any adverse employment actions, you must attempt to find a reasonable accommodation to allow an unvaccinated individual to continue to perform their job if they are unable to be vaccinated as the result of membership in a protected class.

While this is a small snapshot of some issues that may arise, the moral of the story is that while COVID-19 vaccinations may help your entity make decisions in an effort to return to normalcy, anti-discrimination law must still be considered. These are not straightforward issues; however, the EEOC has issued some guidance to employers which should be consulted. If you are confronted with a COVID-19 vaccination issue, make sure to contact legal counsel prior to taking action. What may seem like a necessary action in the moment, could subject you to costly litigation.