In most workplaces, vaccination mandates will not be an option for many months to come.
Update: On December 16, 2020, the Equal Employment Opportunity Commission released guidance on COVID-19 vaccinations, including employer mandates for the vaccine. Duane Morris has covered this development in an subsequent Alert.
With the Pfizer-BioNTech COVID-19 vaccine approved for emergency use authorization by the Food and Drug Administration and the CDC and approval of the Moderna COVID-19 vaccine expected imminently, America is seeing light at the end of the very long tunnel that has been the pandemic. Accordingly, many employers have begun to consider whether they should have a mandatory COVID-19 vaccination policy to protect employees and return to some normalcy in the workplace. An employer’s decision to require employee COVID-19 inoculations as a condition of workplace entry raises a number of legal, evidentiary and practical issues.
Initially, employers should recognize that the COVID-19 vaccine is not expected to be widely available to the general population until spring or summer 2021. The CDC’s Advisory Committee on Immunization Practices has initially recommended healthcare personnel and residents of long-term care facilities receive the COVID-19 vaccine first. Workers in essential and critical industries, individuals with underlying medical conditions and older adults are being considered by the CDC as next in line. Accordingly, in most workplaces, vaccination mandates will not be an option for many months to come. When vaccinations do start to become available to employees, not all employees will be eligible to receive them at the same time.
But once vaccines are routinely available, can an employer lawfully require vaccinations? Alternatively, can an employer lawfully fail to do so? May an employer make a decision on this issue unilaterally, or must it bargain over it with a union if its employees are represented by one? What if employees band together to refuse to be vaccinated based upon concerns about their safety and health? And, if a vaccination is required, how will an employer actually know if the employee has complied with this mandate? These are some of the many challenges that employers will need to grapple with and, in most cases, address on an individual basis after considering their industry, geographic location, employee population, particular sensitivities and unionization status.
What Past EEOC Guidance on Vaccinations Portends for COVID-19 Vaccination Policies
The Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have not issued a position on employer-mandated COVID-19 vaccination programs as of yet, although they are expected to weigh in shortly. However, in 2009, both the EEOC and OSHA addressed the analogous issue during the H1N1 (aka swine flu) pandemic and found mandatory vaccination programs to be lawful, as long as exceptions for employees under certain medical and religious situations are permitted. In addition, in the EEOC’s March 2020 update to its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance, the EEOC stated that COVID-19 meets the ADA’s “direct threat standard,” meaning that it is not discriminatory for an employer to exclude an employee with COVID-19 from the workplace because an employee with the virus poses a “significant risk of substantial harm” in the workplace. Given this same logic, it would be surprising if the EEOC were to prohibit employers from mandating employee COVID-19 vaccinations in most circumstances.
The EEOC also stated in the guidance that an employee may be entitled to an exemption from a mandatory vaccination requirement under the Americans with Disabilities Act (ADA) based on a disability that prevents the employee from taking a vaccine. Such an exemption would be provided as a reasonable accommodation to an employee’s medical condition if the provision of it does not cause an undue hardship to the employer given the particular situation. In the ADA context, an “undue hardship” is one that causes significant difficulty and expense. Employees are not entitled to the accommodation of their choice but, rather, to one that reasonably accommodates their disability without causing an undue hardship on the employer. So depending on circumstances, an employee who is medically intolerant to the vaccine may be exempted from taking it, but then be required to continue working from home, work in the office after hours when other employees or customers are not present or work in the workplace during regular hours with the continued use of the now familiar mask, social distancing and hand washing practices. Reasonable accommodations may change over time; in this case an employer may allow an unvaccinated employee greater workplace access in the future, particularly as risk of spread declines when other persons in the workplace are vaccinated.
OSHA has similarly indicated prior to COVID-19 that while a healthcare services provider may require an employee to receive a vaccine, an employee would have the right to seek an exemption from the requirement due to medical reasons.
Additionally, once an employer receives notice that an employee’s sincerely held religious beliefs, practice or observance prevents the employee from receiving a vaccine, the employer must provide a reasonable accommodation unless it would impose an undue hardship. Under Title VII (but not necessarily true under some state laws such as in New York), the undue hardship standard for religious accommodations is not as high as under the ADA. Under Title VII, if the cost to the employer of providing a reasonable accommodation is more than “de minimis,” meaning the cost is more than minimal, the employer can decline to provide the accommodation. Here, the costs of not requiring vaccinations can be serious injury or death to employees, resulting in legal risks and economic losses, both of which are more than de minimis.
The EEOC’s existing swine flu guidance, while not prohibiting an employer from mandating a vaccination, recommended that the employer should encourage rather than require employees to be vaccinated. But if an employer doesn’t mandate employees be vaccinated when vaccinations are available, and should such employees infect an exempted disabled employee or other employees who refused to be vaccinated, the employer may be in violation of OSHA’s general duties clause to keep employees safe from known workplace hazards. Alternatively, if the vaccine should later prove to be unsafe for even a limited segment of individuals, the employer may be liable for mandating the vaccination in the context of worker’s compensation. It is possible we may see state or federal laws that limit employer liability from issues arising following a vaccination in order to encourage employers to mandate them.
Exemptions and Accommodations
Given the recent approval of the Pfizer-BioNTech COVID-19 vaccines and other ones likely to follow suit shortly, it is expected that the EEOC and/or OSHA will update their guidance regarding mandatory vaccination programs. While COVID-19 is certainly far more disruptive than H1N1, it is likely employers mandating employees be vaccinated will still need to provide exemptions to employees based on a disability or sincerely held religious belief. If employers provide accommodations from mandatory vaccinations to such employees, they will likely need to require them to heed to other mandated requirements as discussed above. Of course, even for those who are vaccinated, employers must still take steps to ensure that employees comply with other social distancing, mask-wearing and other mitigation measures consistent with the CDC and other federal, state and local guidance and applicable orders.
Another potential federal law limitation on mandating employee COVID-19 vaccinations is the National Labor Relations Act (NLRA). Under the NLRA, employers with union-represented workforces may have to bargain with the union over whether it can implement a mandatory vaccination policy, since safety and health issues are mandatory subjects of bargaining. In addition, unrepresented employees who protest a mandatory vaccination requirement in a concerted manner may also be protected from adverse action under the NLRA.
But what about individual employees who are not represented by a union and do not meet an exemption but are simply not comfortable with receiving a COVID-19 vaccine? Unless protected by state or local laws to the contrary, given the EEOC’s swine flu guidance, in most instances, employers do currently have the right to mandate that they be vaccinated in order to retain their employment.
Whether an employer chooses to mandate its employees be inoculated may also be impacted by humane and practical reasons. Companies may be reluctant to terminate employees for refusing COVID-19 vaccinations when a significant portion of the U.S. population has been reported to be reluctant to be vaccinated and these terminations would reduce a company’s performance and capabilities. On the other hand, having employees vaccinated should reduce absenteeism, quarantines and lost revenues resulting from employee exposures. Employers will need to address this conundrum based upon what is best suited to their particular businesses.
Another issue is evidentiary: How will an employer know if its employees were vaccinated and when? On this front, a vaccination card may be issued, vaccination databases may be created and/or some apps may be created that would allow employers to verify an employee’s vaccination status.
State and Local Laws
Employers will also need to consider state and local law, which may potentially place additional requirements or restrictions on employers who seek to implement a vaccination policy. State governments may require employers in certain industries with higher risks of spreading COVID-19―such as healthcare, correctional services, education and manufacturing―to mandate vaccinations. Or states may seek to implement broad public vaccine mandates. For example, on December 4, 2020, the New York Legislature introduced A11179, which would require all individuals who are proven safe to receive a COVID-19 vaccine to receive one if public health officials determine that residents of the state are not developing sufficient immunity from COVID-19. The proposed bill would only exempt individuals who receive a medical exemption from a licensed medical professional. While the bill is only in its early stages and there is no indication it will pass, it very well may. For example, in the wake of a measles outbreak in 2019, New York repealed the religious beliefs exemption from vaccinations for school children. Other states may follow suit and pass laws mandating vaccinations or, alternatively, require businesses to verify vaccination status of its employees. Other states may prohibit employers from implementing mandatory vaccination policies or include exceptions beyond those for medical and religious concerns.
Finally, employers mandating employees be vaccinated may be required to pay for the vaccinations, depending on the law of their jurisdictions.
What This Means for Employers
Employers considering implementing a mandatory COVID-19 vaccination policy should work with counsel to ensure the policy is lawful under federal, state and local law. All employers should start planning and developing their COVID-19 vaccination policies and prepare for an influx of questions from employees as the vaccines become more available. We will continue to monitor the legal developments on employer-mandated COVID-19 vaccinations and provide additional updates and analysis.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Linda B. Hollinshead, Eric W. Ruden, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
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