by Richard D. Glovsky and Kimberly F. Williams
As the COVID-19 vaccination becomes more readily available, many employers are considering whether to require that employees be vaccinated. In December 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccination. Under this guidance, employers may implement a mandatory vaccination program or policy. However, before implementing such a policy, employers should give careful consideration to the legal issues that mandatory vaccination raises.
Legal Considerations for A Mandatory Vaccination Policy
If an employer decides to implement a mandatory vaccination policy or program, the following legal considerations should be evaluated.
First, an employer should determine whether to provide the vaccine to its employees itself or through a contracted third party or to require its employees to receive the vaccine from an independent third party such as a pharmacy or health care provider. Employers or their contracted third parties who provide the vaccine to their employers may only ask pre-screening questions that are “job-related and consistent with business necessity.” Employers should look to health care officials to determine the necessary pre-screening questions and delve no deeper than what the medical community advises is necessary. An employer whose pre-screening questions exceed the bounds of what is “job related and consistent with business necessity,” runs the risk of violating the Americans with Disabilities Act’s (“ADA”) prohibition against inquiries that elicit disability-related information.
In contrast, if an employee receives the employer-required vaccine from an independent third party, the ADA’s “job related and consistent with business necessity restriction” will not apply.
Second, under the EEOC guidance, an employer who requires vaccinations must allow for disability and religious exemptions. The guidance, consistent with the ADA, requires that employers exempt from mandatory vaccination requirements an employee whose disability (i.e. a physical or mental impairment that substantially limits a major life activity) prevents the employee from safely receiving the vaccine. If an employee claims they cannot safely receive the vaccine due to a disability, the employer must engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation such as working remotely, wearing a face mask, or limiting the employee’s contact with the public.
Similarly, the guidance, in accordance with Title VII of the Civil Rights Act of 1964 (“Title VII”), requires employers to provide an exemption or other accommodation if receiving the vaccine would implicate an employee’s “sincerely held religious belief.” Proving a “sincerely held religious belief” is a relatively low bar.
In each of these instances, an employer does not need to provide an accommodation if doing so would pose “an undue hardship” on it. Undue hardship may include financial as well as accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the employer’s business.
Third, an employer who is considering mandating vaccinations should consider liability issues. The current vaccinations have only received Emergency Use Authorization, meaning that individuals who have the opportunity to receive the vaccination also have the right to refuse it. This sets up an inherent conflict between an employer’s mandatory policy and an individual’s right to refuse the vaccine as well as potential liability if the employee should be injured or harmed as a result of receiving the employer-mandated vaccine. Whether Workers’ Compensation laws will cover such injuries remains an open question.
Pros and Cons of a Mandatory Vaccination Policy
In considering whether to implement a mandatory vaccination policy, employers should recognize the pros and cons. One obvious pro is that a vaccinated workforce may be a safer one. It may also help bring employees back to the workplace. Working in the office or other business locations may help increase productivity and profitability and provide more certainty to workforce availability. It may also allow employers to avoid certain COVID-related risks and liabilities.
On the other hand, many people are unwilling or hesitant to receive the vaccine. Thus, a mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Additionally, vaccine availability and eligibility should be considered. It may not make practical sense to require that employees be vaccinated if certain employees are not yet eligible to receive the vaccine or the vaccine is in short supply.
Pros and Cons of a Discretionary Vaccination Policy
Nothing compels employers to mandate vaccinations. Many employers have adopted policies and programs to entice employees to be vaccinated. This “carrot” approach has included paid time off (“PTO”) for time taken to be vaccinated and for absences due to the side effects of a vaccine or for assisting family members to be vaccinated, gift cards, free Lyft rides to vaccination centers, and cash awards. As of the writing of this article, the EEOC is considering providing parameters for such incentives.
Further, a discretionary vaccine policy may result in a more content workforce and avoids ADA and Title VII issues. It also eliminates the specter of liability from an adverse reaction to a vaccine or its withdrawal from the marketplace, and it diminishes the administrative burdens necessitated by a mandatory policy, especially if the employer is administering its own vaccine program.
On the other hand, a discretionary policy may create a less safe work environment and may result in lesser emphasis placed on employee presence in the workplace.
What Employers Should Do
First and foremost, all employers should vigilantly follow guidance from the Centers for Disease Control, EEOC, and other federal, state, and local agencies. They should continue to comply with and reinforce all existing safe workplace protocols.
Employers who decide to require vaccinations should develop, adopt, and provide to their employees the policies and protocols that will govern. They should provide a reasonable period for employees to be vaccinated, keeping eligibility and other factors in mind. At the end of the period by which vaccinations are required, employers should require written evidence of vaccinations having been administered and engage in the interactive process with those employees claiming a disability or religious exemption. Employers will also need to decide whether to terminate all non-vaccinated, non-exempt employees or allow those who refuse to be vaccinated to work (or continue to work) remotely.
Additionally, any employer who is considering a mandatory vaccination program and who contracts with a third-party vendor should consider inserting indemnity and hold harmless clauses into such contracts. Under the Public Readiness and Emergency Preparedness Act, employers are insulated from federal and state tort liability if they are “program planners” of a vaccination program. Program planners include employers who refer the administration of vaccines to third party vendors.
Finally, because not everyone will be vaccinated, and the length of the efficacy of vaccinations is unknown, COVID and its mutations most likely will be with us for quite some time. Consequently, employers will need to consider these issues for the foreseeable future.
Richard D. Glovsky, Co-Chair of Locke Lord’s Labor and Employment Practice Group, is a Partner in the Firm’s Boston office. He handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims, and is a trusted adviser and general counsel to various companies and their senior executives.
Kimberly Williams is a Partner in Locke Lord’s Dallas office with experience representing employers in matters involving claims of discrimination, harassment, retaliation and wrongful discharge. She provides employment counseling and advice to clients on matters including hiring, firing, and other disciplinary action, wage and hour issues, leave issues and compliance with federal and state laws and regulations.