By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

Since the long-awaited COVID-19 vaccine has arrived, many people have begun to question whether their employers are allowed to implement a vaccine mandate.  A primary factor to consider in order to determine whether employers can legally implement a mandatory vaccine policy, is how such a policy interacts with the Americans with Disabilities Act (the “ADA”).  Specifically, the ADA protects applicants and employees from employment discrimination based on disability, as well as prevents employers from inquiring about individuals’ disabilities.  Further, employers are unable to conduct or request medical examinations of applicants and employees, unless the employer can show that it the purpose is job-related and necessary for business.

In December 2020, the Equal Employment Opportunity Commission (“EEOC”) released their findings on this matter, stating that the administration of a COVID-19 vaccine to an employee by an employer is not a “medical examination” by definition under the ADA. Thus, private employers may choose to implement mandatory COVID-19 vaccine policies as a condition for employees to return to the office.  However, certain employees that possess disabilities covered by the ADA are nonetheless exempt from their employers’ potential vaccine mandates. 

Under the ADA, if a vaccine mandate is inapplicable to a certain employee due to their disability, the employer must show that an unvaccinated employee would pose a “direct threat” and “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).  The EEOC has suggested remote work as a reasonable accommodation for such employees that cannot be accommodated in office. Additionally, the EEOC has urged employers to be flexible during this time and engage in the interactive process to determine reasonable accommodations for each disabled employee.

Disabilities covered by the ADA include, but are not limited to, deafness, blindness, diabetes, cancer, epilepsy, intellectual disabilities, partial or completely missing limbs, mobility impairments requiring the use of a wheel chair, autism, cerebral palsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.  Individuals that have one or more of these disabilities have the right to refuse a vaccine and may not face repercussions or discrimination in any way as a response to their inability to be vaccinated, unless their employers can meet the aforementioned burden.

In addition to employees with these disabilities, there are several other medical complications that could arise in certain individuals as a result of receiving the vaccine, which employers must also take into consideration.  For instance, individuals with severe allergies may be exempt, as there have been reports of individuals experiencing anaphylactic reactions after receiving the Pfizer vaccine.

Further, employers should take mental health issues into account, as some individuals may suffer from severe anxiety, fear of needles, or other vaccine-related phobias. A similar situation took place in Ruggiero v. Mount Nittany Medical Center, 736 Fed. Appx. 35 (3d Cir. 2018).  In Ruggiero, an employee was terminated for refusing to take a vaccine mandated by her employer.  After submitting a doctor’s note stating that she had severe anxiety about injections, she requested the reasonable accommodation of wearing a mask instead of receiving the vaccine. In response, her employer refused to accommodate her and terminated her.  The Third Circuit found that her claim was strong enough to survive a motion to dismiss.

Disabled employees should be aware of their rights and employers must take ADA-covered employees into account when implementing a vaccine mandate.  The vaccine may not be safe or feasible for certain individuals and as such, employers should work with employees to identify reasonable accommodations as an alternative to the vaccine.  Employees that cannot safely receive the vaccine may not be discriminated or retaliated against for their disability and inability to receive the vaccine.

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