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COVID-19 Vaccines are Finally Here

Private Employers Look to Their Ability to Mandate Vaccinations in the Workplace

Lindsey K. Self
1/19/21

woman medical seated resting on couch   The FDA green-lighted the first COVID-19 (a.k.a. coronavirus) vaccine and the initial distribution has begun. While four in ten Americans say they will not get the vaccination, employers wonder if they can mandate the vaccine in their workplaces. The answer is generally yes, but there are many exceptions and other factors employers should consider.

Mandating Vaccinations in the Workplace

   This is not the first-time employers have considered mandating vaccines in the workplace. In 2009, OSHA released its position on employer-mandated flu vaccines, which stated that employers may require employees to take a vaccine as a term and condition of employment, but not in every circumstance. Additionally, the EEOC’s guidance noted that vaccination requirements in the workplace must be job-related and consistent with business necessity or justified by a direct threat in order to be mandated. Historically, this meant the flu vaccine could be mandated for employees in a patient care setting who interact with vulnerable populations.

   On December 16, 2020, the EEOC released specific guidance regarding the COVID-19 vaccine and the applicability of various laws, including ADA and Title VII.

Application of Mandatory COVID-19 Vaccination Programs

Americans with Disabilities Act

   The vaccination itself is not considered a medical examination for purposes of the ADA but pre-screening vaccination questions may be because they are likely to elicit information about a disability. Therefore, if the employer requires the employee to be administered the vaccination by the employer, the employer must show these disability-related screenings are “job-related and consistent with business necessity.”

   However, if the employer offers the vaccination to employees on a voluntary basis and there is no adverse action if the employee refuses, the job-related and consistent with business necessity requirement is not implicated. The job-related and consistent with business necessity restriction also does not apply if the employee receives an employer-required COVID-19 vaccine from a third party that does not have a contract with the employer, like a pharmacy or health care provider. Further, an employer may require proof of a vaccination so long as the employer does not ask additional questions that may elicit information about a disability.

   Employees may be exempt from a vaccination requirement based on an ADA-covered disability that prevents them from receiving the vaccine. Employers may be required to provide a reasonable accommodation unless  unvaccinated employees 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.” A determination that the unvaccinated employee will expose others to the virus at the workplace is enough to conclude that a direct threat exists.

   Employees with food allergies, for instance, may be unable to receive the vaccination due to the disability. Employers must participate in the interactive process to determine what, if any, accommodation may be provided, given the particular facts. If the employer determines that a reasonable accommodation  does not cause undue hardship exists for the employee, the employer must provide it.

Title VII of the Civil Rights Act of 1964

   Similarly, employers must work with employees who have sincerely held religious beliefs that prevent them from being vaccinated to determine what reasonable accommodations may be provided. Employers  only may deny a religious-based accommodation if the accommodation would impose an undue hardship on the employer. Historically, an accommodation would have to be very costly or otherwise very burdensome to the employer for a religious accommodation to be denied outright.

Labor Considerations

   Vaccine requirements in the workplace may be considered a working condition, and thus subject to bargaining. Even employers with management-rights clauses in their  labor contracts may need to bargain over aspects of the requirements, including what happens if employees refuse the vaccination, what classes of employees are subject to the requirements and how often the vaccination would be required.

   In a non-union setting, employers should remember that if employees band together and refuse the vaccination on the grounds of unsafe work rules, the conduct may be considered protected concerted activity.

State Law Considerations

   A growing number of state legislators are considering proposals to ban vaccine mandates. While most states do not restrict an employer’s ability to mandate vaccines, there is nothing in agency guidance or federal law that would prohibit states from doing so in the future. Lawmakers may be motivated to ban mandates if there is a widespread reluctance to the take the COVID-19 vaccine among their constituents.

Practical Considerations

   From a practical perspective, employers should consider the expense of enforcing a mandatory vaccination program. Depending on the hesitation of its workforce in receiving the vaccination, fueled by the anti-vax movement or other concerns, an employer could face labor shortages due to employee attrition or an inability to recruit new employees.  Further, the vaccination program also could result in additional administrative burden as a result of handling exemption requests and the interactive process to identify potential reasonable accommodations. Finally, employers may be additionally burdened by the expense of having to defend administrative charges and litigation filed by disgruntled employees. 

   Ultimately, employers across industries may require employees to be vaccinated for COVID-19 but should consider the implication of many federal and state regulations if choosing to do so. Even if an employer chooses to implement a mandatory COVID-19 vaccination program, the vaccination must be job-related and consistent with business necessity, regardless of whether the employer administers the vaccination program itself or requires proof of the vaccination. Further, employers should tread lightly if employees refuse the vaccination for disability or religious grounds, and consider whether the refusal implicates labor laws. Ideally, employers will consult legal counsel when deciding whether they are better off encouraging the COVID-19 vaccine rather than requiring it as a condition of employment based on these considerations.

   Should you have any questions regarding the COVID-19 vaccine or how COVID-19 regulations may impact your business, please contact Ms. Self.

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Disclaimers:

   At the date of publication, the above information was correct.  It is quite possible the information above has changed as COVID-19 is a rapidly evolving situation. 

   The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.