Can Employers Require COVID-19 Vaccinations? Pitfalls and Guidance for a Mandatory Vaccination Plan

Shook, Hardy & Bacon L.L.P.

With several vaccines on the market and many states rolling out mass-vaccination plans, employers are beginning to ask: Can my company require employees to have the COVID-19 vaccine? In short, the answer is “yes,” with appropriate justifications and reasonable accommodations for certain employees. The question, however, touches many areas of law and is unique to each employer.

This article analyzes the four major areas of law affected by a mandatory vaccine: (1) The Americans with Disabilities Act, (2) Title VII, (3) The Occupational Safety and Health Act, and (4) Tort Liability, and the associated justifications and accommodations. The article then includes a brief portion addressing challenges unique to California employers.

I. The Americans with Disabilities Act (ADA)

The ADA permits employers to require vaccinations under certain circumstances. Specifically, the ADA allows an employer to have a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” 42 U.S.C.A. § 12113. Under this qualification standard, an employer may require all in-person employees be vaccinated, in order to avoid the “direct threat” of contracting or spreading COVID-19, provided there are no other reasonable accommodations the employer could adopt to prevent COVID-19.

But, even though an employer may require vaccines in some circumstances, there are caveats. Mandatory vaccines implicate two portions of the ADA:

  1. Medical Examinations and Disability-Related Inquiries (42 U.S.C.A. § 12112(d)(4)(A))
  2. Reasonable Accommodations (42 U.S.C.A. § 12112(b)(5))

1. Medical Examinations and Disability-Related Inquiries

The ADA restricts an employer’s ability to conduct “medical examinations” and make inquiries into an employee’s disabilities. 42 U.S.C.A. § 12112(d)(4)(A). An employer may not perform a medical examination or make disability-related inquiries to determine “whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The EEOC has stated that administering the vaccine is not a medical examination or a disability-related inquiry. Section K.1. But the EEOC states that pre-screening questions before the vaccine is administered may be medical examinations or disability-related inquiries. Therefore, any questions must be job-related and consistent with business necessity.

In order to be job-related and consistent with business necessity, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Section K.2.

To decide whether an employee poses a “direct threat” if he or she does not receive the vaccine, “[e]mployers should conduct an individualized assessment of four factors in determining 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.” Section K.5; 29 C.F.R. 1630.2(r). “A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.” Section G.4.

The EEOC has stated the COVID-19 disease poses a “direct threat” to the health and safety of employees who are working in person. As a result, the possibility of contracting COVID-19 when working in person would justify pre-screening questions.

SUMMARY

Asking pre-screening questions to administer the vaccine qualifies as a medical examination or disability-related inquiry. An employer may not perform medical examinations or disability-related inquiries unless it is job-related and consistent with business necessity. These inquiries are job-related and consistent with business necessity if asking the questions avoids a direct threat. Employees who are working in person but do not receive vaccines pose a direct threat. As a result, employers likely may ask employees in large office settings and employees with regular contact in the medical sphere pre-screening vaccination questions. But for remote employees, employers likely may not ask pre-screening questions because they would be impermissible medical examinations.

2. Reasonable Accommodations

As indicated above, employers may require vaccines under a “qualification standard” that eliminates a direct threat. But if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). In other words, an employer can require a vaccine and may point to the direct threat of COVID-19 in setting this qualification standard. In doing so, the employer must show there are no reasonable accommodations that it could adopt to eliminate or reduce the threat of COVID-19.

The most obvious reasonable accommodation is a remote-work policy. Section K.5. Additionally, the EEOC has identified the requirement of gloves, masks, social distancing, and infection control practices as options for reasonable accommodations. Section G.4; G.5.

If an employer can safely eliminate or reduce the significant risk of harm imposed by COVID-19 by adopting these accommodations, then it may not require vaccines. But if adopting these accommodations would impose an “undue hardship” on the business, then the employer has no duty to adopt the reasonable accommodation.

An “undue hardship” is defined as “an action requiring significant difficulty or expense.” 42 U.S.C.A. § 12111(10). There are a number of factors courts review when determining whether adopting a reasonable accommodation poses an undue hardship, including: “the nature and cost of the accommodation,” the employer’s “overall financial resources,” and the employer’s “type of operation.” 42 U.S.C.A. § 12111(10)(B).

In addition, some employees may have disabilities that prevent them from receiving a COVID-19 vaccine. For instance, employees who suffer from immunodeficiency may not be candidates for live attenuated (weakened) vaccines (although the Pfizer vaccine is an mRNA, meaning it will not contain live virus, and may be suitable for such patients). And there are indications that people who carry EpiPens and have strong allergic reactions will not be suitable for Moderna’s vaccine. In these instances, the employee may request a reasonable accommodation from receiving the vaccine. Again, reasonable accommodations will take the form of remote work, protective gear and social distancing. And again, an employer will need to provide these accommodations unless doing so would pose an undue hardship.

SUMMARY

An employer may require its employees to receive the vaccine, with two caveats. First, an employer may require the vaccine only if there are no reasonable accommodations available to reduce or eliminate the risk of COVID-19. Reasonable accommodations include remote work, protective gear and social distancing. If these reasonable accommodations pose an undue hardship on the employer’s ability to operate the business, the employer does not have to take them and may instead require the vaccine. Second, the employer may require the vaccine unless the employee has a medical reason why he or she may not take the vaccine. In that instance, the employer must provide a reasonable accommodation to the employee.

II. Title VII

Title VII prevents an employer from discriminating against employees “on the basis of his race, color, religion, sex, or national origin.” 42 U.S.C.A. § 2000-e2. Under this statute, an employee may refuse to take the vaccine due to a sincerely held religious belief or practice.

If an employee refuses the vaccine under Title VII, the employer must offer a reasonable accommodation, unless the accommodation would pose an undue hardship on the employer. The reasonable accommodations would be the same as those identified by the EEOC above (remote work, protective gear, social distancing).

Title VII has a different interpretation of the phrase “undue hardship” than that adopted by the ADA. Title VII does not define “undue hardship,” meaning courts must determine its existence on a case-by-case basis. Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). Under established case law, “an accommodation causes ‘undue hardship’ whenever that accommodation results in ‘more than a de minimis cost’ to the employer.” Dykzeul v. Charter Commc’ns, Inc., No. CV1805826DSFGJSX, 2019 WL 8198218, at *5 (C.D. Cal. Nov. 18, 2019), quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986). California takes a slightly more stringent interpretation of the phrase “de minimis cost,” requiring an actual cost to employers have occurred, not simply a hypothetical cost. Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (“claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of actual imposition on co-workers or disruption of the work routine”). One typical example of an undue hardship is “[a]n accommodation that requires the plaintiff’s coworkers to take on additional work.” Dykzeul, Inc., 2019 WL 8198218, at *6.

SUMMARY

An employer must provide a reasonable accommodation to any employee who refuses taking the vaccine for reasons protected by Title VII (religious reasons), unless the reasonable accommodations would impose an undue hardship. What qualifies as an “undue hardship” must be determined on a case-by-case basis.

III. The Occupational Safety and Health Act (OSHA)

In the past, OSHA has allowed employers to require mandatory vaccination in the H1N1 Flu context:

OSHA does expect facilities providing healthcare services to perform a risk assessment of their workplace and encourages healthcare employers to offer both the seasonal and H1N1 vaccines. It is important to note that employees need to be properly informed of the benefits of the vaccinations. However, although OSHA does not specifically require employees to take the vaccines, an employer may do so. In that case, an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.

Standard Interpretation, OSHA’s position on mandatory flu shots for employees, November 9, 2009.

Under this positional letter, OSHA would permit employers to require mandatory vaccines, but would caution employers to know the benefits and to respect refusals for medical reasons.

There is no indication that an employer would be in violation of OSHA’s safety requirements in the event it did not require the vaccine.

SUMMARY

OSHA permits employers to require mandatory vaccines.

IV. Tort Liability

Many states recognize the tort of negligent transmission of an infectious disease. See, e.g., John B. v. Superior Court, 38 Cal. 4th 1177, 1188, 137 P.3d 153, 159 (2006). Under this form of negligence, an employer may be liable for negligently causing the spread of COVID-19.

In other disease contexts (typically sexually transmitted diseases), negligence is generally limited to knowingly transmitting the disease. See Id. at 1189; Andrews v. MV Transportation, 126 F. Supp. 3d 9, 12 (D.D.C. 2015) (holding that “[t]o hold an individual negligent for transmitting an infectious disease, it must be proved that the defendant knew of the presence of the disease”).

Likely, this actual or constructive knowledge would apply to any COVID-19 liability as well, meaning an employer or its employees would need to have a confirmed positive (or potentially an outstanding test) and still risk transmission before liability would be imposed.

In light of that law, it seems unlikely that an employer deciding to not impose a vaccine requirement would be exposed to liability for COVID-19 transmission. But general negligence liability still applies to the transmission of diseases and under a “reasonableness” analysis for negligence; deciding to not require a vaccine may still be a factor.

SUMMARY

An employer likely does not face tort liability for either requiring or not requiring mandatory vaccination.

V. Mandatory Vaccinations for California Employers

Currently, the California Department of Fair Employment and Housing has not addressed a vaccine mandate. As a result, employers must decide whether to mandate the vaccine, relying on state agency advice and comparable federal regulations.

As to agencies, the California Department of Public Health regularly publishes COVID-19 data and tools, and even has a COVID-19 Vaccines page. The State of California COVID-19 portal has released a handbook, COVID-19 Employer Playbook. Neither has direct guidance on requiring the vaccine, but they offer helpful information for understanding the vaccine.

In addition to agency material, California A.B. 685 requires that employers adhere to heightened occupational health and safety standards, reporting all outbreaks to worksite employees and local public health agencies. To assist in preventing and containing COVID-19, Cal/OSHA has released a “Model COVID-19 Prevention Program.”

The short answer for California employers is that things are in flux. There is no direct guidance yet available from California agencies or lawmakers on whether employers may mandate this vaccine. California agencies continue to publish and regulate in the areas concerning the vaccine, and as a result, California employers should continue to monitor these sites and implement their advice.

VI. Policy and Human Resource Considerations

This analysis is meant to help answer the question: Can an employer require COVID-19 vaccination? But overlaying this question is another, more subtle question: Should an employer require the vaccine? While—as mentioned above—there may be emerging legal avenues and justifications for requiring the vaccine, many employers are deciding to pursue permissive vaccination and not mandatory vaccination. These decisions are driven by human resource considerations and the ever-fluid nature of employee relations.

Employers considering how to handle the upcoming vaccines would be wise to be thoughtful and considerate not only of the applicable law in this area but also their effects on employees. Guidance is changing daily, and hardline approaches to vaccination risk not only legal missteps but also alienating one’s workforce. For that reason, the final area for employers to consider when reviewing mandatory vaccines is the policy effect the decision will have and the correlating human-resource considerations.

Conclusion

An employer may require its employees to submit to mandatory COVID-19 vaccination. But if it does so, the employer will need to show there are no other reasonable accommodations available that do not impose an undue hardship. Additionally, the employer will need to respect employees who refuse to take the vaccine for disability or Title-VII-related purposes, offering reasonable accommodations to these employees. If an employer takes these precautions, it will be able to require the vaccine without considerable liability exposure under the ADA, Title VII, OSHA or tort actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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