MANDATING COVID-19 VACCINES

Just Because You Can Do Something Doesn’t Mean You Should Do Something

By James A. Paretti, Jr. and Kaitlyn A. Hansen

With the COVID-19 vaccine becoming more widespread, and millions of Americans itching to return to some sense of normalcy, employers are facing tough decisions on when, and how, to return employees to work safely.  Moreover, as federal, state, and local guidance regarding safety protocols and vaccines change on a day-to-day basis, employers have struggled to keep up.  In late May 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency that enforces federal civil rights laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act (“GINA”) updated its guidance relating to whether employers can mandate employees to receive the COVID-19 vaccine.  

So, Can Employers Require their Employees to Receive the COVID Vaccine?  Generally, Yes.

The EEOC’s guidance makes clear that federal equal employment opportunity laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they are subject to the reasonable accommodation provisions of Title VII and the ADA.  “Reasonable accommodation” can mean different things depending on whether an employee maintains an objection to the vaccine due to a disability, or due to their religion.  

Under the ADA, employers may maintain safety-related qualifications standards (here, mandatory vaccination programs), so long as the standards are both job-related and consistent with business necessity.  Due to the public-health crisis surrounding the COVID-19 pandemic, most employers with in-person operations will likely meet this standard.  If an employee’s disability prevents them from receiving the vaccine, an employer generally may not require compliance unless that individual poses a “direct threat”—a significant risk of substantial harm—to themselves or to others.  As you can imagine, this requires employers to make an individualized assessment regarding the employee’s ability to safely perform the essential functions of their job.  

An employer confronted with an employee’s request to decline the vaccine due to their disability must make a two-fold determination.  First, is there a direct threat to others in allowing the employee to abstain from vaccination?  In making that determination, employers should consider the duration of the risk, nature and severity of the potential harm, the likelihood that the harm would occur, and the imminence of the potential harm.  Next, would a reasonable accommodation reduce or eliminate the threat?  An employer must engage in the typical, flexible interactive process and provide accommodations for employees who seek to avoid vaccination, so long as the accommodation does not impose an undue hardship—“a significant difficulty or expense”—on the employer.  The EEOC’s guidance notes that a reasonable accommodation for an employee with a disability might include requiring unvaccinated employees to wear a facemask, allowing them to work a staggered shift, allowing telework if feasible, reassignment to a vacant position in different workspaces, or making changes to work environments such as improvements in ventilation systems or limiting the employee’s contact with others.

Additionally, where an employee’s objection to the vaccine is based on her pregnancy, the employer must ensure that it treats the employee the same way—and provides the same accommodations—it would to other employees similar in their ability or inability to work.  Employers should also keep in mind that they may have an obligation to engage in the interactive process for employees who are indeed fully vaccinated but have an underlying disability that creates a continuing concern that they face a heightened risk of severe illness should they contract COVID.

On the other hand, reasonable accommodations required under Title VII can be less taxing.  Where an employee maintains a sincerely-held religious belief, practice, or observance, an employer must provide a reasonable accommodation to that employee unless the accommodation would cause an undue hardship—”more than a minimal cost or burden”—on the employer.  In assessing this burden, an employer should consider the proportion of employees already partially or fully vaccinated in the workplace and the extent of the employee’s contact with non-employees who may or may not be vaccinated.  Reasonable accommodations in this context can also include requiring unvaccinated employees to wear facemasks, socially distancing from coworkers or non-employees, allowing the employee to work modified shifts, requiring periodic COVID tests, providing telework opportunities, or allowing the employee to accept reassignment.

Employers with unionized workforces must also specially consider their obligations under any applicable collective bargaining agreement.  Because employers have bargaining obligations to their unionized workforces, whether the employer can require its employees to be vaccinated, the administration of vaccinations, and whether the employer can discipline those who refuse will depend on the terms of the collective bargaining agreement and could require additional bargaining with the union.

But Should They?  Well, Maybe.

The vaccination conundrum for employers brings to mind the age-old adage—just because you can do something does not necessarily mean you should do that thing.  As the EEOC’s guidance makes clear, employers that wish to mandate vaccinations could unintentionally step into a field of legal landmines.  Employers, big and small, should take a hard look at the practical implications and difficulties in managing accommodations processes for employees:  Can your HR team handle additional claims, interactive processes, and accommodations?  Is your work environment and physical space physically capable of accommodating individuals via social distancing, removing contact with non-employees, staggered shifts, updates to air circulation, telework, or reassignment of employees who cannot be vaccinated?  Will the cost of managing such requests outweigh the benefits to your business?  

Also keep in mind that the law of your state or locality may affect your ability to mandate vaccines.  As of the date of this article, no state or locality has prohibited employers from requiring vaccines or from inquiring as to an employee’s vaccine status.  One state (Montana) has adopted a law prohibiting discrimination based on COVID vaccine status, and many states have introduced, but not yet passed, legislation proposing the same.  Such law potentially sets up claims for discrimination based on vaccine status.  Current CDC guidance, adopted by many states, provides that fully-vaccinated workers may go without masks in the workplace, and need not socially distance, while masks and social distancing is recommended by the CDC (and required in some states!) for non-vaccinated employees.

Employers hesitant to mandate vaccines due to these considerations should consider incentivizing vaccines rather than mandating them.  Many employers have stopped short of mandating vaccines.  And employees generally respond more favorably to the carrot over the stick, i.e., incentives over punishments. What is more, employers may generally offer incentives to employees to voluntarily provide documentation of vaccination with less fear of falling into a legal boobytrap, particularly where the employer is only seeking proof of vaccination from a third-party, such as a physician or pharmacy, and not itself administering the vaccine (or contracting with an agent to do so).  Employers that administer the vaccines themselves must ensure that an incentive is not so substantial as to be coercive or render participation in a vaccine program involuntary.  Many large employers have opted to incentivize, but not require, vaccinations by employing programs which, for example:  provide free rides to vaccine appointments, provide cash for proof of vaccinations, provide extra vacation day(s) to vaccinated employees, and grant additional paid time off for taking the vaccine.

Every employer should carefully consider an individualized approach in determining whether to incentivize or mandate COVID-19 vaccines for its business based on its own needs and resources.