Coronavirus (US): Key vaccination issues for employers - Part 2

Bryan Cave Leighton Paisner

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g. disability, religion, pregnancy, others)?

It depends.  Accommodation analyses are highly fact-specific, so will vary for each individual employee.  Nonetheless, employers should remember that they will not be required to:

  • provide an accommodation that would allow the employee to avoid performing essential job functions;
  • provide an accommodation if it would present an undue hardship or burden, or would pose a direct threat to the health or safety of others; or
  • grant the specific accommodation requested by the employee (i.e., if there are multiple ways to reasonably accommodate the objection, the employer may choose which one to provide).

Generally speaking, in the vast majority of cases, it seems unlikely that an employer will be required to permit an unvaccinated employee to come to the workplace. Under current EEOC guidance, it appears that any unvaccinated employee, by definition, poses a “direct threat” to others, given that COVID has already caused or contributed to the deaths of more than 430,000 individuals within the United States, not to mention the long-term serious health concerns experienced by many individuals diagnosed with COVID.  However, in situations where an accommodation analysis may be required (disability, religion, pregnancy-based refusals and others), employers must still consider whether there is a reasonable accommodation that would eliminate that direct threat or reduce it to acceptable levels without creating undue hardship.

We suspect that many employees who refuse vaccination will ask to be permitted to be present in the workplace so long as they wear a mask and practice social distancing.  But masks are not as effective compared to the effectiveness of the vaccine (based on the data from the medical trials).  And we have many months of evidence that social distancing is not practiced consistently and may be difficult to effectively enforce – especially in a busy workplace.

However, there may be unique circumstances in which an unvaccinated employee could come onto Company property and perform his or her duties in a way that would not pose a direct threat to others.  For example, a solitary guard working night shift who has no physical contact with anyone else, or someone whose duties can be performed entirely while in a motor vehicle alone with the windows up, might be able to work on Company property without posing a direct threat to others.  An employer might be able to fashion similar circumstances for other employees in specific cases.  The existence of a direct threat is based on an individualized determination, so an employer might be required to allow some unvaccinated workers on the property in unique situations where their individual circumstances (when and where they work, what they do, and how they do it) can be adjusted in a way that makes them safe to be on employer premises.  But in the vast majority of situations, we believe it unlikely that an employer would be required to allow an unvaccinated worker on employer premises, particularly where the employee will be working around / close to others.

Working from home will be another commonly requested accommodation, and in many cases will be an acceptable accommodation, depending on the circumstances, including the nature of the employer, the employee’s responsibilities, and the workplace.    Whether allowing someone to work from home in lieu of vaccination poses an undue hardship will depend on the facts.

Similarly, employees who cannot work from home may request time off as an accommodation of their inability to be vaccinated (due to religion, disability, pregnancy or other protected reasons).  For both such accommodations – working from home and time off – the duration of the requested accommodation may impact whether the accommodation poses an undue hardship.  For example, a nursing mother may be willing and able to receive the vaccine six weeks after her employer requests her to do so, in which case allowing her to work from home or take time off until then might not be unreasonable.  But a permanent refusal to ever be vaccinated (as will be the case with most religion-based objections and some disability-based objections) is far more likely to create undue hardship.  For example, if an employee were essentially asking to work from home permanently, or take leave indefinitely until the rest of the workforce has been vaccinated, that request could very likely be denied under Title VII (because it imposes more than a de minimus impact on operations) and under the ADA (because open-ended or unreasonably long leaves of absence are not required as a reasonable accommodation).

Notably, for now, the EEOC has determined that COVID poses a direct threat, but that may change as the general population is vaccinated. As the COVID landscape changes (better treatments, fewer cases, widespread vaccinations and herd immunity), the EEOC may determine that COVID is no longer a “direct threat” and that greater accommodation of objections to vaccination is required.  But until such time, employers have more flexibility to prohibit unvaccinated employees from returning to the workplace (unless a reasonable accommodation can be granted on a case-by-case basis).

(8) If an employer wants to implement a mandatory covid vaccine program or policy, what are the timing considerations?

Vaccines will not be widely available for several months. As of the publication of this Q&A, the Centers for Disease Control and Prevention (CDC) reports that 48,386,275 COVID vaccine doses have been distributed nationwide, and 26,193,682 have been administered.  Vaccines are being distributed based on priority for healthcare workers, seniors, those with preexisting conditions, and others in vulnerable populations.

Therefore, we recommend waiting until vaccines are widely available to the public before imposing a mandate.  To do otherwise could expose an employer to potential discrimination claims and create significant administrative burden.  For example, if employers do not require younger workers to be vaccinated before returning to work (because they are not eligible at the time to receive the vaccine), a mandate that older workers nonetheless be vaccinated has the potential to have a discriminatory impact on the basis of age.

In addition, there is some question as to whether employers can impose a mandatory vaccination requirement while the vaccines have received only an emergency use authorization (EUA) from the FDA.  The FDA takes the position that when a drug is approved for emergency use, individuals must have the right to refuse to take the drug.  However, neither the EEOC nor the Occupational Safety and Health Administration (OSHA) has taken the position that EUA status prevents an employer from requiring employees to receive the COVID vaccine as a condition of working in the workplace.  Instead, the EEOC’s most recent guidance simply notes that the FDA licensure/EUA issue generally requires informing recipients that they have the right to refuse the vaccine – which the employer will not be disputing. Therefore, a mandatory vaccination policy should make clear that employees are free to refuse vaccination (for any reason); they simply will not be permitted to work on employer property without it (subject to possible accommodation as discussed above).  Unless and until the vaccines receive more than EUA from the FDA, employers should bear in mind that the EEOC or OSHA might, at some point, prohibit even that requirement.

(9) Should vaccinated employees be required to continue face coverings, distancing, and other mitigation protocols?

Yes.   On January 29, 2021, OSHA issued revised COVID Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.  In that guidance, OSHA specifically stated that there should be no distinguishing between workers who are vaccinated and those who are not with respect to the continued use of protective measures.  Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not sufficient evidence that COVID vaccines prevent transmission of the virus from person-to-person. OSHA noted further that the CDC explains that experts need to understand more about the protection that COVID vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID.

(10) If an employee is vaccinated, and refuses to follow other protective measures based on an assertion of immunity, are there any limitations on disciplinary remedies?

None but reasonable accommodation.  As noted above, employers are permitted (and directed by OSHA) to continue requiring mitigation and protective measures like masking, and arguably should continue those measures, even as more employees get vaccinated.  Vaccines are not guaranteed to be effective, and at this time it is unclear whether vaccinated individuals can still spread the virus. Additionally, if some employees with protected objections to vaccination (religion/disability/pregnancy, etc.) are permitted to return to the workplace at all, masking and other safety measures will be even more important – both for those employees and for the rest of the workforce.

Employees who refuse to comply with these safety measures will be subject to discipline and discharge on the same basis as any other employee who violates a safety rule.

But bear in mind that some employees may object to some workplace safety measures (such as masks) on protected grounds – such as an employee with severe asthma who provides a doctor’s note stating that the employee cannot safely wear a mask.  In such cases, the employer should conduct the normal reasonable accommodation analysis and determine whether the employee’s refusal to comply with the safety measure (e.g. refusal to wear a mask) can be reasonably accommodated without undue hardship to the employer, as discussed above.

(11) If the employer does not want to mandate vaccination, are there any legal considerations for encouragement or incentive programs?

Yes.  With respect to voluntary or encouragement programs, if incentives are provided to encourage employees to receive the vaccine, the employer should ensure that the incentives do not have a coercive effect in practice.  The EEOC, in its recently issued guidance on wellness programs, suggests that incentives to participate in a wellness program should not be anything more than a de minimus incentive (e.g., a gift card or the like).  Paid time off to get vaccinated would likely pass scrutiny as well.  But a large bonus payment likely would not.  It is not clear whether a vaccine program would fall under the EEOC’s just-issued regulations.  The DOL was positioned to issue guidance on the issue as well, but the new administration has put a hold on all pending regulations from the prior administration.  Consultation with counsel is suggested to evaluate a vaccine incentive program.

Additionally, for employees who do not participate in the program because of religious beliefs, disability, and/or other characteristics protected by federal or state law, the employer must ensure that comparable incentives are available for those employees.

(12) What concerns must an employer with a unionized workforce consider?

A vaccine program (particularly a mandatory one) is likely a term and condition of employment, and a mandatory subject of bargaining.  An employer should determine whether prior negotiations with the applicable union(s) is required.

[View source.]

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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