While it was just a few short months ago that everyone was optimistically thinking that COVID-19 was almost behind us, it seems that this pandemic has not neared its end as the Centers for Disease Control and Prevention (the “CDC”) now recommends that even fully vaccinated people wear masks indoors due to the high COVID-19 transmission rates. Employers understand that the need to have employees back in the workplace and office is of great importance to a company’s level of performance, but employers also know that the performance of their company does not outweigh the need to protect their employees’ health and safety. With the still lower than optimal vaccination rates and the changing mask guidance issued by the CDC and other state and local health agencies, many employers are now grappling with whether to mandate vaccination as a condition of employment, and if so, what are the risks involved if workers refuse to comply. Below we discuss the guidance provided by the Equal Employment Opportunity Commission (the “EEOC”) and the potential risks associated with implementing a mandatory vaccination policy.
In May 2021, the EEOC provided employers with some comfort when it issued its guidance that answered some workplace vaccination questions. Most importantly, the EEOC said that employers are not prohibited by federal anti-discrimination laws from requiring all employees who physically enter the workplace to have received a COVID-19 vaccination. However, employers who are requiring or encouraging employees to be vaccinated must still comply with the Americans with Disabilities Act (the “ADA”), Title VII of the Civil Rights Act of 1964 and other workplace laws. This requires employers to still provide for reasonable accommodations of their vaccine mandate for medical or religious reasons.
While some employers may choose not to adopt a mandatory vaccine policy because the status of the vaccines were only authorized under an “Emergency Use Authorization,” recent developments do support vaccine mandates. The Department of Justice (the “DOJ”) Office of Legal Counsel recently issued an opinion clarifying that the U.S. Food and Drug Administration’s (the “FDA”) “emergency use authorization” (“EUA”) designation for vaccines is not an impediment for employers to impose a mandatory vaccine requirement. Further, the federal government and many states have imposed mandatory vaccine requirements on government employees. These new government mandates have begun to lead private employers to consider implementing a mandatory vaccine policy. In addition, the Pfizer vaccine is now fully authorized with others expected to be authorized as well.
From the EEOC’s perspective, private employers are permitted to impose a mandatory vaccine policy on employees so long as the policy is job-related and consistent with business necessity based on safety concerns arising from COVID-19. If an employee requests a waiver from the mandatory vaccine policy based on a religious belief or a disability, employers are prohibited from requiring vaccination for that employee unless the employer can determine that the unvaccinated employee would pose a direct threat to the health or safety of individuals in the workplace, or that the exemption request is not valid. Employers should evaluate the following four factors to determine whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. If an unvaccinated employee poses a direct threat to the workplace, employers must consider whether a reasonable accommodation can be made for the unvaccinated employee. Some reasonable accommodations may include requiring the unvaccinated employee to social distance and wear a mask at all times, to work remotely or work a modified shift to reduce that employee’s exposure to other employees, or to accept a work reassignment. It is important for employers to ensure that managers and supervisors who are responsible to communicate with employees know how to recognize an accommodation request from an employee and know to whom the request should be referred to for consideration.
Should an employee seek a waiver of the mandatory vaccine requirement for the employee’s sincerely held religious belief, employers must grant the waiver and offer a reasonable accommodation unless it would cause an undue hardship on the business. “Undue hardship” has been defined by courts as an accommodation that has more than a “de minimis” cost or burden on the employer. Employers must note that the definition of religion is broad, and some practices may be unfamiliar to the employer; hence, the employer should assume the request for a religious accommodation is based on a sincerely held religious belief.
While many employers may just want to implement a mandatory vaccine policy, employers may want to consider other legal and practical considerations. First, even though the EEOC has stated that private employers are not prohibited by law from implementing a mandatory policy, employers may want to start with a voluntary policy, which will have fewer restrictions and will pose fewer compliance obligations on the employer. Also, having a voluntary policy may induce employees to get the vaccine if they don’t feel they are forced to get the vaccine. Second, employers should consider the fact that some individuals or other demographic groups may face greater barriers to receive the vaccine than other groups. Employers may need to address those concerns and try to offer solutions to increase employees’ access to vaccines. Third, employers must take into consideration state and local privacy laws if mandating employees to be vaccinated. Lastly, employers should consider the impact a mandatory vaccine policy will have on employee morale. There are potential risks that create employee and/or public relations challenges that employers should consider before implementing a mandatory vaccine policy.
Some employers implementing a mandatory vaccine policy may consider whether they want to administer the vaccine or work with a third party to administer the vaccine to their employees. However, there are certain risks associated with both of these options. First, certain vaccine pre-screening questions can be deemed a medical inquiry. Whether the employer is administering the vaccine itself or contracting with a third party to administer the vaccine, it is imperative that the only pre-screening questions that may be asked are job-related and consistent with business necessity, such as limited questions about the employee’s symptoms or exposure to COVID-19. Second, if the employer’s vaccination program involves employees receiving the vaccine at a location other than the workplace during the workday, employers may be responsible for compensating employees for the time spent getting the mandatory vaccine. Third, should an employee have a vaccine-related injury or illness, the employer may be responsible for the workers’ compensation claim. Lastly, if employers are looking to create incentives for their employees to get the vaccine, employers must ensure that the incentive is de minimis and not so substantial that it could be deemed coercive.
So what should employers do now? First, employers must determine if there are any new laws issued by their state and local governments regarding the imposition of mandatory vaccines. Second, employers should consider if a mandatory vaccine policy is necessary for their business. For instance, if most employees are working remotely and the business is doing well with employees working remotely, it may not be necessary to require employees to be vaccinated if they are not coming into to the office to work. Third, if employers would rather impose a voluntary vaccine policy, employers should continue to educate employees on the benefits, risks and logistics of getting the vaccine. Fourth, if implementing a mandatory vaccine policy, employers should communicate to their employees in writing about their reasonable accommodation process. Fifth, whether implementing a voluntary or mandatory vaccine policy, employers should communicate to their employees that any information obtained from their employees regarding their vaccination status will be maintained and safeguarded in a confidential manner. And lastly, employers should continuously monitor OSHA’s COVID-19 related safety guidance.