Can an unvaccinated employee be a "direct threat" to the health and safety of themselves or others in the workplace? James Sullivan, co-chair of Cozen O'Connor's OSHA-workplace safety practice, examines the complex issue that he says has been further complicated by the emergence of the Covid-19 omicron variant, which is highly transmissible but can be spread by both vaccinated and unvaccinated persons.
When implementing the various vaccine requirements imposed on employers by federal, state, and local mandates, employers are required to consider requests from employees for reasonable accommodations from that mandate due to medical or religious reasons. An employer is not required to grant such an accommodation, however, if there are no "reasonable" changes that could be made to enable an unvaccinated employee to continue to perform their duties without posing a "direct threat" to the health or safety of themselves or others in the workplace.
An employer's determination that an unvaccinated employee is a "direct threat" in many instances, however, may be driven in large part by the severity of the pandemic in a particular area, as opposed to the question whether an unvaccinated employee can perform essential job duties with an accommodation.
The recent evidence showing the highly contagious nature of the
omicron variant could further complicate the "direct
threat" analysis and make it very difficult for an
unvaccinated employee to demonstrate that an accommodation request
should be granted.
New York City's Guidance on Direct Threat
New York City's mandate for private employers, which took effect on Dec. 27, 2021, specifically addresses this "direct threat" issue in guidance published by the New York City Commission on Human Rights on Dec.15, 2021. In that guidance, the city makes it clear that an employer should not grant an accommodation "that would cause a direct threat to others or customers, or to the requestor, or otherwise impose an undue hardship on the employer's business."
As an example of such a direct threat, the guidance provides examples of permitting an unvaccinated employee to "work in close proximity to high-risk individuals." Other situations in which it is likely to pose a direct threat, according to the guidance, would include any accommodation allowing an unvaccinated employee to engage in a "high-risk" activity such as "yelling or exercising while in close proximity to others."
The guidance further suggests that employees that are denied an accommodation be granted an unpaid leave of absence until they are able to provide a proof of vaccination.
Based on Information an Employer Has at The Time
Generally, an employer's claim that an employee's accommodation would present a direct threat has been considered a high burden for employers to meet under the Americans with Disabilities Act (ADA). For example, an employee with a condition that cannot be adequately controlled with medication, such as epilepsy, may not be able to safely operate heavy equipment or an employee with a condition that causes dizziness or fatigue may not be able to safely operate a forklift.
The employer's use of a direct threat defense for not granting an accommodation, however, must be based on the best available objective evidence and an individualized assessment of the employee's ability to perform safely the essential functions of the job. In evaluating the employer's decision, courts will look at the nature of the job, duration of the risk, the severity of the risk, and the probability that the potential harm will occur.
Moreover, if the threat of harm is very serious, courts have found that even a small risk may be significant. In most cases, an employer's "direct threat" determination only must be objectively reasonable based upon information that it has at the time and many courts will not require an employer to prove that it was, in fact, correct about the risk of harm the employee posed at the time it made its determination.
Impact of Omicron on Direct Threat Question
Given the rapid increase in infections of the new omicron variant of the virus due to both the transmissibility of the variant and the variant's ability to evade immunity provided by prior infection or vaccination, employers might be inclined to assert that the presence of any unvaccinated employee in a workplace could present a direct threat.
The early data suggesting that the omicron variant may cause less severe illness in those that are infected, however, may support the opposite conclusion, i.e., that the threat of actual harm is not sufficient to constitute a direct threat.
Further complicating the analysis is the growing evidence that fully vaccinated individuals are also being infected with the new variant, (the so-called "breakthrough" infections), and that those vaccinated individuals also appear to be able to transmit the variant to others, including both vaccinated and unvaccinated people.
Due to these recent findings that vaccinated (and often asymptomatic) individuals can transmit the virus, employers might be even tempted to conclude that both vaccinated and unvaccinated employees can pose a "direct threat" to a certain population in the workplace under certain circumstances.
Fortunately, employers only must evaluate the question whether the unvaccinated employees pose the threat because, generally, there is no need for a vaccinated employee to seek an accommodation from a vaccination mandate.
Of course, an employer's requirement for a "booster" shot to be considered fully vaccinated will potentially place a completely new category of employees into the mix, especially if some previously vaccinated employees request a medical accommodation based on complications or side effects that their healthcare provider believes could be attributed to their earlier vaccinations.
In sum, all employers will still have to evaluate whether it could put in place certain measures to protect all workers, both vaccinated and unvaccinated (as well as others they may encounter) before making any "direct threat" finding. Measures such as mandatory social distancing, mask wearing, erecting barriers, the elimination or substitution of particular "marginal" job functions and, even, temporarily modifying work schedules that could decrease contact with coworkers or the public could possibly protect an employer's unvaccinated and vaccinated employees.
Only after examining these other potential actions that could accommodate a requested exemption from a vaccination requirement should an employer conclude that any group or classification of their employees poses a "direct threat" and deny a requested accommodation on that basis.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Originally published by bloomberg
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