As the COVID-19 vaccines become more widely available, many employers are considering whether to mandate that their employees get vaccinated. The decision can be complicated. As they evaluate how best to proceed, employers need to understand their legal rights and obligations, and also to consider the practical consequences associated with any vaccination mandate.
Are employee vaccination mandates lawful?
Can employers lawfully require that employees get vaccinated? The answer is a qualified “yes.” Responding to employer uncertainty, on December 16, 2020 the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance addressing certain issues relating to the administration of COVID-19 vaccines to employees and the federal discrimination laws enforced by the EEOC. The EEOC guidance clarified that an employer generally can require that employees get vaccinated as a condition to returning to the workplace. An employer also can require that employees provide proof that they have been vaccinated.
owever, if an employee notifies an employer that the employee cannot get vaccinated due to a disability, under the federal Americans with Disabilities Act (ADA) the employer cannot exclude the employee from the workplace unless the employer can show that the “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.’”
- This requires the employer to conduct an individualized assessment of: “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.”
- Under current pandemic conditions, many employers will be able to show that such a direct threat exists. However, even if the employer can show that the unvaccinated employee would pose a direct threat, the employer must still engage in an ADA-required “interactive process” with the employee to determine whether it is possible to provide a “reasonable accommodation” to the employee (to enable the employee to work) without incurring an “undue hardship.”
- A reasonable accommodation could potentially include permitting the employee to work in a more isolated area of the workplace, or to work remotely.
Similarly, if an employee notifies an employer that the employee cannot get vaccinated due to a sincerely held religious belief or practice, the employer must provide reasonable accommodations to the employee unless providing an accommodation would pose an undue hardship under Title VII of the Civil Rights Act of 1964.
- In its guidance, the EEOC notes that courts have defined “undue hardship” under Title VII to include anything “having more than a de minimis cost or burden on the employer.” The EEOC cautions that employers should assume a request for religious accommodation is legitimate unless there is an objective basis to question the religious nature or sincerity of a religious belief, practice or observance.
- Again, one form of reasonable accommodation that potentially could be required is to permit the employee to work (or continue to work) remotely. Given the widescale remote working occurring since the pandemic started, it may prove difficult for an employer to establish that permitting an employee to continue working remotely is unreasonable or poses an undue hardship on the employer.
Accordingly, if an employer mandates that employees be vaccinated and an employee refuses, the employer should determine the reason for employee’s refusal and, if the refusal is based upon an asserted disability or religious belief or practice, determine whether the refusal needs to be accommodated under the ADA or Title VII (and/or any corresponding state or local law). In addition, if any employees in the workplace are unionized, the employer should determine its collective bargaining obligations before implementing a vaccine mandate.
Do employee vaccination mandates make sense?
ssuming an employer can lawfully mandate employee vaccinations, should the employer do so? The answer to this question will vary from employer to employer and will depend upon a variety of factors, such as whether vaccines are generally available to employees, whether employees work in close quarters and/or where social distancing is difficult, whether employees have close contact with customers or members of the public, and whether unvaccinated employees are likely to have contact with a health-compromised population. Thus, for example, health care and hospitality employers may have a more compelling reason to mandate vaccinations then agricultural employers whose employees may work outdoors and maintain social distance.
Employers also should consider that some employees may have a strong reluctance to being vaccinated (unrelated to any specific disability or religious belief or practice) and/or may object to being told by their employer that they must be vaccinated. Some individuals are fiercely anti-vaccine. Some pregnant women are concerned about the potential effects the newly developed vaccines may have on their pregnancies. Are employers prepared to terminate employees if they refuse to be vaccinated? Will drawing a hardline on mandating vaccinations lead to business operational issues and create employee morale problems?
There is precedent for vaccine mandates, of course. For years, many hospitals and health care companies have required flu vaccines and tuberculosis testing for employees. Schools generally require vaccines against measles, mumps and rubella. Notably, however, unlike these other vaccines, the COVID-19 vaccines are not yet approved by the U.S. Food and Drug Administration; they are currently only “authorized for emergency use” pending further studies. Thus, there is some possibility that employers could face liability for requiring COVID-19 vaccinations if employees experience significant adverse side effects.
Early surveys suggest that currently most employers are deciding not to mandate vaccinations. Many employers are choosing to encourage, not require, that employees be vaccinated. Some employers are choosing to require vaccinations only for certain positions, such as positions involving travel or in-person contact with the public. Of course, employer attitudes and approaches with respect to vaccine mandates may change as vaccines become more available, as further government guidance is provided, and/or as new medical information becomes available.
As an alternative to mandating vaccines, some employers are offering incentives for getting vaccinated, such as paid time off from work or gift cards. Although modest incentives are likely permissible, there is some uncertainty concerning whether providing benefits to employees who get vaccinated, while not providing such benefits to employees who do not get vaccinated due to their disabilities or religious beliefs or practice, might constitute unlawful discrimination. The EEOC has raised concerns in the past about what constitutes “voluntary participation” in an employer “wellness program” under the ADA and other discrimination laws. Consequently, on February 1, 2021, a broad coalition of over forty employer and industry organizations sent a letter to the Chair of the EEOC urging the EEOC “to issue guidance providing clarification on the extent to which employers may offer their employees incentives to vaccinate.” To date, no such guidance has been provided.
Proceed with Caution
Any decision to mandate employee vaccinations should be evaluated with careful consideration of both legal obligations and practical consequences. Substantial legal risks exist, and employers should consult with counsel before implementing any vaccine mandate policy as well as before taking any adverse action with respect to an employee who refuses to get vaccinated. Employers should also obtain legal advice before offering any significant benefits to employees as vaccination incentives. The COVID-19 pandemic has presented employers with many novel HR issues over the past twelve months. It continues to be critically important for employers to exercise sound judgment and proceed with caution.
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