Fully Vaccinated Workers May Need COVID-19-Related Accommodations

Many businesses have developed policies on providing reasonable accommodations to employees who refuse to get a COVID-19 vaccine for religious or disability-related reasons. Employers shouldn't forget that fully vaccinated workers may need accommodations, too.

"Although there appears to be a light at the end of the tunnel for the COVID-19 pandemic in the U.S., employers still need to tread cautiously before trying to have their operations return to normal," noted Andrew Turnbull, an attorney with Morrison & Foerster in Washington, D.C.

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In recently updated guidance, the U.S. Equal Employment Opportunity Commission (EEOC) reminded employers to handle reasonable-accommodation requests from fully vaccinated employees in accordance with the Americans with Disabilities Act (ADA). 

"Just because an employee is vaccinated, it really does not change the requirement for an employer to engage in the interactive process with an employee to determine if the employee has a condition that qualifies as a disability under the ADA and whether a reasonable accommodation is needed to assist the employee in being able to perform the essential functions of the job," explained Tina Bengs, an attorney with Ogletree Deakins in Valparaiso, Ind.

In addition to accommodations under the ADA, employees may be entitled to take leave under the Family and Medical Leave Act (FMLA) or state and local laws to care for themselves or a covered relative.  

Employers also are free to offer accommodations and flexible work arrangements beyond what the law requires, noted Raquel Alvarenga, an attorney with Haynes and Boone in Dallas. However, the EEOC warns that employers that voluntarily provide such accommodations and flexibilities may not discriminate against employees based on a protected characteristic, such as age, disability, national origin, race, religion or sex.

Exploring Reasonable Accommodations

The EEOC cautions that some fully vaccinated workers may still need accommodations. "Although current medical information suggests the chances are very low for a fully vaccinated individual to experience adverse effects from COVID-19, it is still possible that the individual could have severe health consequences," Turnbull explained.

The EEOC said a vaccine may not offer some people who are immunocompromised the same measure of protection as it does to other vaccinated people. The agency has also indicated that employees with mental health conditions, such as anxiety, post-traumatic stress disorder and obsessive-compulsive disorder, may need accommodations due to their fears related to COVID-19, even if they are fully vaccinated.

"The employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation," the EEOC said. "This process typically includes seeking information from the employee's health care provider—with the employee's consent—explaining why an accommodation is needed."

The key issue that employers must decide is whether an accommodation is reasonable and will allow the employee to perform the essential job functions, Bengs noted. If the employee wants to telework, but a remote-work arrangement doesn't allow the employee to perform all essential job functions or would cause an undue hardship for the employer, she said, the employer may consider alternative accommodations, such as:

• More frequent workspace cleaning.
• A private workspace located farther away from others.
• A separate building entrance that doesn't require the employee to travel through populated areas.

"Focus on the goal, which is to find a solution that allows the employee to perform his or her work safely and effectively," Bengs recommended. "If that goal can be reasonably achieved, then it is a win-win for the employee and the company." 

Marian Zapata-Rossa, an attorney with Snell & Wilmer in Phoenix, said employers should maintain an open dialogue with employees to clarify their true concerns and determine an appropriate response. 

Caring for Family Members

Is an employer required to approve a work-from-home request if a fully vaccinated employee is concerned about a household member who is in a high-risk category or a child who is not old enough to receive a COVID-19 vaccination?

In its latest guidance, the EEOC makes clear that employers have no obligation to provide reasonable accommodations, including telework arrangements, to employees who request such accommodations based on the disability-related needs of a family member, Alvarenga explained.

But employers may not discriminate against or harass employees based on their association with a person who has a disability, Zapata-Rossa noted. Additionally, under the Genetic Information Nondiscrimination Act, employers are prohibited from asking employees medical questions about their family members. "As such, employers will want to avoid delving into that information," she said.

Employers should note that taking time off to care for a relative may be covered by other federal, state or local laws, such as the FMLA and paid-sick-leave orders. COVID-19-related paid-sick-leave mandates at the state and local level may have different employer requirements or reasons for which leave can be taken.

So employers will want to assess whether requirements beyond the ADA apply before denying an accommodation request, Zapata-Rossa said.

Flexible Policies

The general rule for employers is to ensure that all policies and procedures are uniformly enforced for all employees, unless a law requires an exception, Bengs noted. With that in mind, she said, many employers have gone above and beyond during the pandemic to find creative solutions that allow employees to feel safe while still ensuring that the work is being completed.

Patrick Dennison, an attorney with Fisher Phillips in Pittsburgh, noted that the pandemic has changed the landscape of teleworking, and many companies are offering ongoing remote-work arrangements to attract employees. "If employers intend to be flexible and accommodate beyond what is legally required, they should make sure those accommodations are done in a consistent and nondiscriminatory manner," he said.

Turnbull suggested that employers conduct an assessment of their workforce to determine whether they can provide employees in certain areas or positions flexible options. After the assessment is performed, he said, employers should clearly communicate the policy and let employees know how to qualify.  

Employers should also consider having one decision-maker or department handle all requests for accommodations. "That will help ensure that accommodations are handled consistently and lower the risk of disparate treatment of such requests," Turnbull said.