As more businesses move toward ending remote working arrangements, we have had a number of questions from clients with regard to employee requests to continue working from home for medical reasons. The employees cite a comorbid condition such as asthma or high blood pressure, and they often say their doctor has recommended that they not return to the office due to concerns over contracting COVID-19. When the employer asks about the employees’ vaccination status, they respond that they have chosen not to receive the vaccine at this time for reasons other than medical instruction or religious beliefs.
Must employers accommodate employees with underlying medical conditions who choose not to be vaccinated? Presumably, vaccinated employees with the same medical issues would not face an elevated risk by returning to the office. Under the Americans with Disabilities Act, employers are supposed to consider accommodations based on the choices employees have made with regard to medical treatments. In other words, an employer could not deny an ADA accommodation because the employee chose not to obtain surgery that would make the accommodation unnecessary.
Do the same legal principles apply to employees who decline vaccinations? In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission has said that vaccines are not ADA medical examinations. This logic could extend to ADA accommodations, meaning that employers would only be required to consider accommodations necessary for a vaccinated employee with an underlying medical condition. EEOC guidance on this issue discusses accommodating employees who are not vaccinated for medical or religious reasons, but it does not address people who decline the vaccine for other reasons.
With vaccines now widely available, the employer could also take the position that if it complies with CDC guidance with respect to mask wearing, social distancing, etc., employees with comorbid conditions should not face an unreasonable risk of COVID-19 infection in the workplace. Employers can ask employees to provide medical information in support of an accommodation request, including whether the employee can get vaccinated and whether the medical concerns apply if the workplace follows CDC guidance.
As these return-to-work issue continue, hopefully the EEOC will provide additional guidance with regard to accommodation obligations to voluntarily non-vaccinated employees.