By: Jonathan Landesman and Hope Steidle Kildea
In March, we spoke at ABC Eastern Pennsylvania’s Safety Committee Meeting about the employment law implications of employer-mandated COVID-19 tests and vaccines. Below is an overview of the topics we addressed during the presentation and answers to some other frequently asked questions.
Q: Can I require my employees to submit to COVID-19 testing?
A: Yes. Generally, employers can legally require employees to submit to COVID-19 testing that is “job-related and consistent with business necessity.” The rule arises under the Americans with Disabilities Act (ADA), which prohibits employer-mandated medical tests, unless such tests are part of a necessary response to a “direct threat,” such as COVID-19. The Equal Employment Opportunity Commission (EEOC) stated that it will not consider any employer action that is consistent with CDC recommendations to be in violation of the ADA. Employers should monitor CDC recommendations and be prepared to modify their testing programs in the event of a change in the CDC’s position. Additionally, employers should check all applicable recommendations and guidance from state and local public health authorities and professional organizations to ensure compliance. As long as an employer’s testing policy comports with the available recommendations for their geographical area and industry, the policy should meet the ADA’s standard for employer-mandated medical testing.
Q: Can I require my employees to submit to COVID-19 antibody tests?
A: No, EEOC guidance definitively states that employers cannot require employees to submit to mandatory antibody tests because the CDC considers such tests to be unreliable. Employers implementing a mandatory testing policy should utilize diagnostic test (PCR or antigen tests) for all mandatory employee testing.
Q: As a subcontractor, what can I do if the general contractor on a project is imposing new testing requirements for all workers that were not reflected in our original contract?
A: This one had our Labor & Employment Group stumped, so we phoned-a-friend, Anthony Byler, our resident construction law guru. He provided the following answer:
Any request for performance different than that described in the contract is a change to the work and gives rise to the opportunity to seek a change order. If a general contractor imposes new testing requirements for workers that are likely to materially increase the cost or time of performance, a subcontractor should consider requesting a change order in writing, providing reasons why the new requirements are different from those identified in the contract and why/how the new requirements will increase the subcontractor’s cost and time of performance. In doing so, the subcontractor should review and follow the change order procedures identified in the contract to ensure it is conforming to the applicable notice and timing requirements.
Q: Can I require my employees to get the COVID-19 vaccine?
A: Yes. Generally, employers can legally mandate employee vaccination against COVID-19. However, this general rule is subject to a number of exemptions and limitations that are discussed below.
Q: Can I require my employees to submit proof of a negative COVID-19 test and/or proof of vaccination?
A: Yes. Employers can require their employees to submit such evidence. How an employer chooses to implement such a policy implicates a number of employment laws, such as the ADA that prohibits employers from requesting information about an employees’ disability status; the Genetic Information Non-Disclosure Act (GINA) that prohibits employers from requesting an employee’s genetic information; and the Health Insurance Portability and Accountability Act (HIPAA) that protects employees’ medical information from unauthorized disclosure. Pursuant to the ADA and GINA, employers should instruct their employees not to provide any disability-related or genetic information when submitting their proof of vaccination, including any documentation addressing the employee’s pre-vaccination screening results. Employers should obtain their employee’s consent before obtaining test results or vaccination confirmation from the employee’s healthcare provider. Finally, employers must keep all employee medical documents, including COVID-19 test results and vaccination confirmations, confidential and stored separately from employees’ general personnel files.
Q: What can I do if an employee refuses to submit to a COVID-19 test or vaccine?
A: Title VII of the Civil Rights Act (Title VII) protects employees who refuse to get a COVID-19 test or vaccine due to a sincerely held religious belief that would be offended by such action. Additionally, the ADA protects employees who are unable to receive the vaccine due to an existing medical condition. If an employee refuses to submit to a COVID-19 test or vaccine for either reason, the employer must make a “reasonable accommodation” to exempt the employee from the requirement. A reasonable accommodation may include alternative protective measures to getting tested or vaccinated (e.g., temperature checks, use of PPE, social distancing, work from home). Employers may require their employees to submit proof of their medical condition or religious belief before granting a reasonable accommodation request.
If an employee refuses to submit to a COVID-19 test or vaccine for other reasons, such as ethical objections that are unrelated to a religious belief, the employer may take appropriate disciplinary action against the employee, up to and including termination or exclusion from the workplace. Employers should confirm that their testing and vaccination policies comply with industry best practices before taking disciplinary action against an employee who refuses to get tested or vaccinated.
Q: Instead of mandating vaccination, can I encourage my employees to get the COVID-19 vaccine by offering a bonus or other incentive to employees who submit proof of vaccination?
A: Yes, employers may choose to implement a vaccination incentive program to encourage vaccination. However, such programs are subject to the same exemptions under the ADA and Title VII. Thus, employers must provide reasonable accommodations to employees who refuse to get vaccinated due to a medical condition or religious belief. A reasonable accommodation must provide an exempt employee with an alternative means of qualifying for the benefit offered (e.g., wearing additional PPE, submitting to regular temperature checks, maintaining social distance, working from home).
Employers should also note that there may be limits on the value of incentives they can offer. The issue turns on whether the EEOC decides to treat vaccination incentives as employee wellness programs, which are subject to voluntariness requirements under the ADA and GINA. Under the Trump administration, the EEOC issued a proposed rule limiting the value of employer incentives for certain wellness programs to those of a de minimis value, such as a water bottle or sticker. The EEOC has since withdrawn the proposed rule as part of the Biden administration’s regulatory freeze. Without any remaining regulatory guidance on the issue, it is unclear what, if any, limit applies to wellness program incentives.
Should you have any questions about testing and vaccination policies or any other issues related to the COVID-19 pandemic and your workplace, please do not hesitate to contact Cohen Seglias attorneys Jonathan Landesman (firstname.lastname@example.org) and Hope Steidle Kildea (email@example.com).