Towards the end of last year, Moderna and Pfizer developed vaccines for coronavirus. Now that the technology exists, the challenge at hand involves distributing the COVID-19 vaccine across the nation. Currently, Texas has nearly a million vaccines available, and just over half a million have been administered. This means that, in a state with 29 million people, only 2% of the population is vaccinated. The waiting period to receive vaccinations will be long, but employers should take advantage of this time to ascertain that their vaccination programs will be federally and state-compliant.
Employees/enterprises that are eligible for the COVID-19 vaccine
Due to the limited supply of vaccines, the state of Texas is rolling out vaccinations in phases. This ensures that certain groups get priority access to the COVID-19 vaccine. Prioritized groups that currently have access to the vaccine include:
- healthcare workers,
- EMS workers,
- residents of long-term care and nursing homes,
- those over 65 years old, and
- those over 16 years old with chronic medical conditions that increase the risk of succumbing to the coronavirus.
The Texas government estimates that the vaccine will be available to the general public sometime in spring this year.
Limitations on mandatory vaccinations
Vaccinating employees can help protect customers and employees alike. It can also help businesses avoid legal liability and absenteeism arising from COVID-19 illness. However, employers seeking to mandate vaccines must overcome several legal hurdles.
Before issuing a vaccine, healthcare providers must ask questions that screen for disabilities. The Americans with Disabilities Act (ADA) requires that disability screenings be “job-related and consistent with business necessity”. In other words, an employer must be able to prove that unvaccinated employees create a direct threat against themselves and others before making vaccinations mandatory.
Employees may refuse vaccinations due to their disabilities or religious beliefs and practices. Such actions are protected by the ADA and Title VII of the Civil Rights Act, respectively. When this happens, an employer must prove two things. First, the employer must show that an unvaccinated employee poses a direct threat at the worksite. Second, the employer must be unable to accommodate that employee without undue hardship. If so, then the employer may bar an employee from entering work sites.
Other ADA provisions to keep in mind when vaccinating employees
It is unlawful for managers and supervisors to disclose that an employee is receiving accommodations. It is also unlawful to retaliate against an employee for requesting accommodations.
Asking or requiring an employee to provide proof of a COVID-19 vaccine is not a disability-related inquiry. However, the employer should be wary of employees providing any medical information along with the proof to avoid implicating the ADA.
Genetic Information and Nondisclosure Act (GINA) provisions to keep in mind when vaccinating employees
GINA prevents employers from acquiring or discriminating based upon genetic information. Though certain COVID-19 vaccines use mRNA technology, the EEOC states that mandating vaccines does not invoke GINA.
Pre-screening for vaccinations may involve asking questions about a patient’s family history. Thus, it may be advisable to warn employees not to provide genetic information or to have third parties conduct vaccinations.
If your business requires assistance regarding COVID-19 or other employment law and commercial litigation matters, do not hesitate to contact us. As many businesses have already found, Minces Rankin is prepared to promptly provide the most up to date legal advice regarding your workplace’s COVID-19 concerns. Contact Minces Rankin to minimize any negative impact COVID-19 may have on your business and maximize your chances for a prosperous and healthy new year.