The Centers for Disease Control and Prevention (CDC) currently estimates that a limited supply of COVID-19 vaccine will become available before the end of 2020. While this is good news for those of us who look forward to returning to our favorite pre-pandemic activities, it presents difficult questions for employers. Can an employer require employees to be vaccinated? Should an employer do so? Like most things in 2020, the answer is not easy.
To date, neither the Equal Employment Opportunity Commission (EEOC) nor the Occupational Safety and Health Administration (OSHA) has published specific guidance on the hypothetical question of whether an employer may legally mandate COVID-19 vaccinations. Generally, subject to contrary state or local law, an employer may implement a mandatory influenza (flu) vaccination policy as long as the policy is job-related and provides exemptions based on an employee’s ADA covered disability or an employee’s Title VII protected sincerely held religious beliefs. Although the EEOC has advised employers to encourage flu shots rather than require them, it has not prohibited employers from mandating flu vaccinations. Likewise, OSHA has not prohibited employers from doing so.
When the EEOC updated its prior pandemic guidance entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act (ADA) to address COVID-19, it punted on the question, noting that a vaccine for COVID-19 does not yet exist. Significantly, however, the EEOC declared that COVID-19 meets the ADA’s “direct threat standard” which permits employers to engage in broader medical inquiries and procedures in the workplace than normally permitted under the ADA. The EEOC clarified that COVID-19 poses a “significant risk of substantial harm” to individuals in the workplace, clearing the way for employers to implement tests and measures that would otherwise be impermissible under the ADA, such as temperature checks, symptom screening and health questionnaires. The EEOC and/or state and federal authorities are likely to issue further guidance or regulations if and when a COVID-19 vaccine is approved and employers should stay alert for that guidance. But, for now, employers must rely on predictions. Given the present EEOC guidance on flu vaccinations and its declaration that COVID-19 is a “direct threat,” most commentators predict that the EEOC would allow an employer to implement a mandatory COVID-19 vaccination policy, as the policy is job-related and provides appropriate exemptions under ADA and Title VII.
In some ways, whether an employer should implement a mandatory COVID-19 policy is more a difficult question than whether an employer could do so. Employers who implement a mandatory COVID-19 vaccination policy should expect to receive a significant number of disability and religious accommodation requests from employees. Employers will need to prepare for this administrative burden and remain up to date not only on disability and religious accommodation law but also on the ever-changing guidance from public health authorities. Lawfully processing exemption requests, particularly those requests based on religious beliefs, will require well-trained human resources professionals and potentially the assistance of in-house or outside legal counsel. Employers will be required to engage in the interactive process and, if necessary, determine reasonable accommodations such as, minimizing employee interactions, requiring masks, offering separate offices or telecommuting. Employers would also be subject to the ADA’s mandate that medical records be kept confidential and separate from general personnel files. In addition to the administrative burden and potential exposure under the ADA and Title VII for any mishandled accommodation claims or privacy breaches, employers should also be aware that the whistleblower provision of OSHA may create statutory protection for an employee who refuses to be vaccinated due to his or her reasonable belief that the vaccination may result serious injury or death.
Regardless of an employer’s decision, the COVID-19 vaccine has the potential to create serious employee relations issues — with employees on opposite sides of the issue and the employer in the middle. Employers have an obligation to provide a workplace free from serious recognized hazards and many employees may believe that an employer has an obligation to vaccinate all employees to decrease his or her personal risk of returning to the workplace. However, other employees may not be in favor of the vaccine. In fact, a recent report indicates that only about half of U.S. adults (51%) say that they would definitely or probably get a vaccine to prevent COVID-19 if it were available today, meaning nearly as many (49%) say they definitely or probably would not get vaccinated at this time. Whether the employer implements a mandatory vaccine policy or not, there is a potential for one group of employees to be dissatisfied which opens the door to potential union organization efforts. Additionally, both union and non-union employers should be sensitive to employees’ rights to engage in concerted activities under Section 7 of the National Labor Relations Act which could make it unlawful for an employer to interfere with (or take an adverse action against) employees who join together to protest an employer’s COVID-19 vaccine policy or lack thereof.
Employers must begin to consider how they will address the COVID-19 vaccine and ways to give employees a voice in the decision-making process. Of course, whether an employer implements a mandatory COVID-19 vaccine or not, it should continue to monitor CDC and state and local guidance, implement protective strategies for its workplace and reach out to an experienced employment attorney for assistance in developing policies.
 https://www.cdc.gov/coronavirus/2019-ncov/vaccines/8-things.html (Updated October 14, 2020)