Mandatory COVID-19 Vaccination Policies: 10 Issues US Employers Should Consider

As vaccines for COVID-19 become more accessible to the US public, employers are considering whether to implement vaccination policies. There is currently no law or regulation that directly addresses whether employers may mandate employee COVID-19 vaccinations. However, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance document titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Guidance”) to provide guidance to employers regarding COVID-19 vaccinations in the workplace. Below are 10 issues employers should consider in deciding whether and how to craft a workplace vaccination policy.

1. Employers Generally May Implement Mandatory Vaccination Policies

The EEOC’s Guidance does not directly address whether an employer is permitted to adopt a mandatory vaccination policy with respect to its employees. However, the EEOC’s responses to the vaccination-related questions posed in the Guidance strongly suggest that an employer may implement a mandatory vaccination policy as a condition of continued employment or, at the very least, as a condition of physically returning to the workplace, subject to certain exceptions, described below.

In particular, the EEOC opined that administering a COVID-19 vaccine to an employee does not itself constitute a “medical examination” under the Americans with Disabilities Act (“ADA”). Specifically, “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” Accordingly, an employer does not need to establish that a vaccine is “job-related and consistent with business necessity” in order to require the employee to receive the vaccine.

However, pre-vaccination medical screenings, which are required in order to determine whether an individual may be vaccinated, do trigger the ADA’s protections regarding disability-related inquiries because they are likely to elicit information about a disability. Accordingly, if an employer itself administers the vaccine to its employees or hires a third party to do so on its behalf, the employer must demonstrate that the screening questions are “job-related and consistent with business necessity.” To meet this standard, an employer must 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 her or himself or others.”

Importantly, the ADA’s disability-related inquiry standard is not triggered if (1) the employee receives the employer-required vaccination “from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider” rather than from the employer itself or a third party with which the employer has contracted; or (2) the employer offers employees the vaccine on a voluntary basis.

2. Exceptions Exist for Employees Who Cannot Receive a Vaccination Because of a Disability

In the event an employee is unable to receive the vaccination due to a disability, the employer does not have carte blanche to take adverse action against the employee, including by excluding the employee from the workplace. Rather, the EEOC instructs that employers must determine whether the individual’s presence “would pose a direct threat [to the workplace] 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.’” In doing so, the employer must conduct “an individualized assessment of four factors”: (1) the duration of the risk posed by the employee; (2) the nature and severity of the potential harm caused by an employee’s physical presence at the worksite; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

If the employer concludes that the employee poses a direct threat—which the EEOC has stated “would include a determination that an unvaccinated individual will expose others to the virus at the worksite”—the employer must assess whether it can implement any “reasonable accommodation” to mitigate the risk while still allowing the employee to come to the worksite. If no such accommodation is possible or practical because it would impose an undue hardship on the employer, the employer can exclude the individual from the worksite. However, the employer is not automatically permitted to terminate the employee’s employment under such circumstances. Rather, the employer must assess whether other reasonable accommodations are available that would enable the employee to keep his or her job—such as, for example, permitting the employee to work remotely or to take legally mandated leave. Employers should keep in mind that the reasonable accommodation analysis is quite fact-specific. For example, the EEOC advises that “[t]he prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.”

3. Exceptions Exist for Employees Whose Sincerely Held Religious Beliefs, Practices or Observances Prevent Them from Receiving the Vaccine

Pursuant to Title VII of the federal Civil Rights Act, if an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving a COVID-19 vaccination, the employer must provide the employee with a reasonable accommodation unless the accommodation poses an undue hardship. “Undue hardship” under Title VII is defined as an accommodation that has “more than a de minimis cost or burden on the employer.” The EEOC’s Guidance further provides that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” If the employer has an objective basis for questioning the employee’s religious nature or the sincerity of a religious belief, the employer “would be justified in requesting additional supporting information.” As with disability-related reasons for not being vaccinated, the mere fact that an employee cannot be vaccinated because of a sincerely held religious belief does not necessarily mean that an employer can terminate the employee. Other options, such as remote work, may need to be considered as potential accommodations if they do not impose undue hardship on the employer.

4. Asking or Requiring an Employee to Show Proof of Vaccination Is Not, by Itself, a Disability-Related Inquiry Under the ADA

The EEOC has stated that simply requiring an employee to provide proof that he or she has received a COVID-19 vaccination is not a disability-related inquiry because it is not likely to elicit information about a disability. There are many reasons—not all of which are disability-related—why an employee may not be vaccinated. However, to the extent an employer asks an unvaccinated employee questions about why the employee did not receive a vaccination, such questions may elicit information about a disability and would therefore be subject to the disability-related inquiry standard. If an employer requires its employees to provide proof of vaccination from their own health care provider or a pharmacy, an employer should warn employees, in order to avoid implicating the ADA, not to provide any medical information as part of the proof. In addition, because proof of vaccination constitutes personal data relating to an employee, the information should be collected, treated and stored as confidential medical information.

5. Any Questions Requesting Genetic Information Should Be Limited

Under Title II of the Genetic Information Nondiscrimination Act (“GINA”), employers are generally not permitted to use, acquire or disclose an employee’s genetic information. Accordingly, while administering the COVID-19 vaccine generally does not implicate GINA, employers who engage (or hire a third party to engage) in pre-vaccine medical screenings or who require proof that employees have received the vaccine should specifically advise employees not to provide any genetic information, either in responding to screening questions or providing proof of receipt of the vaccine.

6. Whether Mandatory Vaccination Programs Implicate Employee Rights Under Other Laws Should Be Assessed

Prior to instituting a mandatory vaccination policy, an employer should consider whether there are any state laws or regulations that may be implicated. Similarly, an employer should assess whether other statutes, such as the Occupational Safety and Health Act or the National Labor Relations Act, are implicated. For example, collective bargaining agreements may limit an employer’s ability to implement or enforce a mandatory vaccination program as to certain unionized employees. In all events, employers should be mindful that guidance regarding COVID-19 in the workplace continues to evolve on the federal, state and local levels. Employers should carefully monitor applicable updates and consult with their counsel to ensure that their policies comply with the most current guidelines and requirements.

7. Vaccination Policies Must Be Consistently Applied and Enforced Among Similarly Situated Employees

Employers who choose to implement a mandatory vaccination policy must ensure that they consistently apply the policy to all similarly situated employees in order to avoid discrimination claims. Employers should train supervisors and staff regarding how the policy is being implemented and enforced; what information may and may not be discussed with employees; and how to handle exceptions to the policy consistently, including with respect to disability and religious exemptions.

8. Impact on Employee Morale Should Be Assessed

In crafting a vaccination policy, an employer should consider whether a mandatory vaccination requirement, as compared to alternative policies that either “strongly encourage” vaccinations or simply provide that vaccination is purely voluntary and not a workplace requirement, may affect the morale of its workforce. Employers should expect that employees will have divergent views on the necessity of vaccinations, as well as be prepared for the impacts of co-workers with opposite views. Effective communication with employees, regardless of the policy an employer ultimately implements, should help reduce workplace tensions. The vaccines also are currently in the very early phases of distribution, and, depending on the employer’s workforce, mandatory vaccinations may not be well-received by individuals who are hesitant to become vaccinated. On the other hand, an employer in a heavily customer-facing industry, such as the hospitality, retail and entertainment sectors, may decide to mandate vaccinations in order to increase public confidence in the safety of their services.

9. Potential Side Effects from Vaccinations Should Be Considered

According to media reports based on certain medical studies, a small percentage of individuals who receive the vaccine may suffer side effects. An employer that implements a mandatory vaccination policy should consider how it will handle situations where an employee subject to the mandatory vaccination policy suffers side effects from the vaccine. For example, an employer may wish to consider providing such an employee with a paid leave of absence during the period in which he or she is recovering from the side effects. An employer should also discuss any mandatory vaccination policy with applicable insurance carriers, including the employer’s workers’ compensation insurer, to address coverage in the event an employee becomes ill from side effects.

10. All Employees May Not Have to Be Subject to a Mandatory Vaccination Policy

Due to the nature of the vaccination’s phased distribution, certain sectors of the population are eligible to receive the vaccination in the first phase, including frontline healthcare workers and long-term care facility residents. To ensure a safe workplace, an employer should consider whether to implement different vaccination policies with respect to employees in different roles and/or work locations. For example, an employer may wish to mandate vaccinations for employees who have more direct interaction with other workers or with the public as compared to employees who do not.

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