Portable Sanitation Association International

ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION DECEMBER 23, 2020 Page 6 What Employers Need to Know about the COVID-19 Vaccine…Continued from page 5 However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation" 29 CFR 1630.2(r). For example, suppose you require all service drivers to wear waterproof gloves, and the gloves you provide are latex. This might screen out workers with allergies to latex. Considering the direct threat to the health and safety of service drivers who pump units without waterproof gloves, you can mandate gloves—and you can eliminate or reduce the impact on those with allergies by making the "reasonable accommodation" of providing waterproof gloves made out of something else. If no waterproof gloves exist that don't cause an allergic reaction, you would be within your legal rights to prevent that employee from working as a service driver. So how does that concept apply to mandatory vaccinations? Presumably, the vaccination is going to protect the employee against a direct threat. Your first step would be to conduct an individualized assessment of four factors to demonstrate that a direct threat exists: • the duration of the risk; • the nature and severity of the potential harm; • the likelihood that the potential harm will occur; • and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If, as an employer, you determine that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, you first need to look at whether there is a way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If there is a direct threat that cannot be reduced to an acceptable level, then your company can exclude the employee from physically entering the workplace. This still does not mean the company can automatically terminate the worker. As an employer, you will need to determine if the worker has any other rights under the EEOC laws or other federal, state, and local authorities. For example, if your company excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is more likely for office staff than yard workers and service drivers, but it must be considered. These are the same steps you should currently be taking when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer's policies. Continued on page 7

• Cover