As vaccines against COVID-19 become available, employers are asking whether they can mandate that employees be vaccinated. The short answer is “yes” — subject to the need to provide accommodations for employees with medical conditions under the Americans with Disabilities Act (ADA) and for employees with deeply held religious beliefs under Title VII of the Civil Rights Act of 1964 (Title VII).
Just as importantly, however, employers would do well also to ask whether they should require their employees to be vaccinated. Although there may not be a legal barrier to mandating vaccines, in most non-health care workplaces there are practical reasons — absent further federal, state or local government regulation or guidance — why an employer should start by encouraging and facilitating the taking of COVID-19 vaccinations rather than by requiring them.
Many health care employers have historically mandated seasonal flu and other vaccines and are likely to mandate the COVID-19 vaccine for most employees given the risk of infection and spread in many health care workplaces. For non-health care employers, many of which are considering whether to institute a vaccine mandate for the first time, the decision is more complex.
There are reasons why at the start of the mass vaccination process, non-health care employers should favor a voluntary rather than mandatory approach.
First, the vaccine will go initially to health care workers and others at high risk for exposure to the disease. Sufficient doses of the vaccine may not be available for most employees for weeks or even months.
Second, use of the COVID-19 vaccine has not yet gained overwhelming acceptance by the public. Recent polls have revealed that many Americans wouldn’t take a vaccine even if the U.S. Food and Drug Administration (FDA) approved it. Mandating the taking of the COVID-19 vaccine, even after it is widely available, may cause dissent within the workforce and/or result in employees quitting. Employers should consider whether the need for many employees to be vaccinated now could be mitigated by such measures as remote working, appropriate social distancing and masking requirements. Employers should also keep in mind that activities among employees about a vaccine mandate, such as group discussions (in person or through social media), flyer distribution, informal meetings and other activities, are likely protected under the National Labor Relations Act, which prohibits retaliation against employees who engage in “concerted” protected activities.
Finally, the vaccines — at least initially — have only been approved by the FDA for distribution under an Emergency Use Authorization. Most observers, nevertheless, believe that any injury or illness that results from employer vaccination programs will be subject to most state workers’ compensation laws, except in cases of gross negligence or reckless conduct. Some employers may also have another layer of protection under the federal Public Readiness and Emergency Preparedness Act, which provides liability immunity to covered persons against claims of loss “caused by, arising out of, relating to, or resulting from” the administration or use of COVID-19 vaccines approved by FDA — except in cases of “willful misconduct.” Despite these likely sources of immunity, a mandated program may prompt legal claims and litigation from employees who suffer or believe they have suffered ill-effects from the vaccine.
Under the ADA, employees who have disability-related concerns about taking the vaccine may be entitled to decline vaccination as a reasonable accommodation unless it would cause the employer “undue hardship,” broadly defined as significant expense or difficulty. At the same time, employers may exclude employees who pose a “direct threat” to the health or safety of other individuals in the workplace; but determining whether a “direct threat” exists can be a complex assessment. A direct threat includes a determination that an unvaccinated individual will expose others to the virus at the work site.
If an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, an employer that decides to mandate vaccinations must conduct an individualized assessment of four factors in determining whether a direct threat exists:
Even if an unvaccinated employee is found to pose a direct threat, the employer must also consider whether an accommodation, such as remote work or leave from work, would be appropriate. Employers should consult with legal counsel in working through the often complex accommodation process.
The U.S. Equal Employment Opportunity Commission (EEOC) on December 16, 2020, updated its Technical Assistance Questions and Answers and provided additional guidance on how the ADA and Title VII affect employer programs to make COVID-19 vaccinations mandatory once the vaccine becomes available. The EEOC states that a vaccination by itself is not a “medical examination” subject to ADA requirements. Nevertheless, pre-vaccination medical screening questions may implicate the ADA’s provisions on disability-related inquiries because such questions may elicit information about a disability. Such questions might also violate the federal Genetic Information Nondiscrimination Act (GINA), which prohibits employers from asking questions that might elicit genetic information.
An employer that mandates the vaccine and chooses to administer vaccinations itself must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet that standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of herself, himself or others.
The EEOC further states that disability-related screening questions can be asked without needing to satisfy the job-related and consistent with business necessity requirement in two circumstances:
In view of the EEOC’s guidance, employers may want to consider having a third party not under contract with the employer administer the vaccinations or require employees to obtain the vaccination themselves. Avoiding direct sponsorship of a vaccination program likely would permit employers to avoid sticky issues of compliance with the ADA and GINA, because employers would not be asking pre-vaccination screening questions that are regulated by the ADA and GINA.
Simply requesting proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry. However, employers must be cautious asking other questions, such why an employee did not receive a vaccination, because that may elicit disability-related information and would be subject to the pertinent ADA standard that the inquiry be job-related and consistent with business necessity.
Employers may also need to provide an accommodation to employees who have a sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccination unless the accommodation would pose an undue hardship. An “undue hardship” exists under Title VII if an accommodation poses more than a de minimis cost or burden on the employer. While the EEOC ordinarily presumes that an employee’s request for religious accommodation is based on a sincerely held religious belief, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, it may request additional supporting information.
Because of the current uncertainties, we recommend that non-health-care employers consider the following:
Charles R. Bacharach
410-576-4169 • email@example.com
Theodore P. Stein
410-576-4229 • firstname.lastname@example.org
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