EUA Status Does Not Prohibit Employers from Requiring the COVID Vaccine; Seven Factors for Employers to Consider When Considering a Mandatory Vaccination Policy

Stoel Rives - World of Employment

While many employers initially were hesitant to institute mandatory COVID vaccinations, the recent surge driven by the Delta variant and announcements from large organizations—including the U.S. military, United Airlines, and major health care systems across the country—have caused many employers to revisit mandatory vaccination policies.

The Equal Employment Opportunity Commission and U.S. Department of Justice (DOJ) have made clear that, absent a contrary state or local law that prohibits mandatory vaccines (as we previously blogged about for Oregon’s restrictions for health care employers here, with accompanying regulations available here), employers may require employee vaccination as a condition of employment. This is true notwithstanding the current Emergency Use Authorization (EUA) status of the COVID vaccine, which may have led some employers to hesitate in issuing a vaccine mandate. In a recent written memorandum, the DOJ explained that the EUA status does not affect whether such a mandate is lawful:

Section 564(e)(1)(A)(ii)(III) of the Food, Drug, and Cosmetic Act concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.

For employers considering implementing a mandatory vaccination policy, below are some factors to consider:

  1. Disability and Religious Accommodations: While employers are within their right to require vaccinations as a condition of employment, employers need to be prepared to make accommodations for employees who are unable to get vaccinated because of a disability or sincerely held religious belief. Employers presented with accommodation requests should ask for supporting documentation (e.g., a note from a health care provider or something in writing explaining the religious belief) and explore reasonable accommodations for the unvaccinated employee, for example, continued mask or social distancing requirements, a modified schedule or workspace, periodic COVID testing, telework, or a leave of absence.
  2. Employee Productivity: A mandatory vaccination policy may help reduce absenteeism, since vaccinated employees may be less likely to get sick or need to quarantine. Higher vaccination rates may also lead to fewer workers’ compensation claims (if an employee contracts COVID at work, the employee will be covered by the company’s workers’ compensation insurance, regardless of whether the company is at fault).
  3. Employee Morale: How will a mandatory vaccination policy be received by your workforce? Will it make employees more comfortable returning to in-person work? Or would “forcing” vaccinations lead to backlash amongst your employees?
  4. Union Considerations: If your organization’s workplace is unionized, a mandatory vaccination policy is likely a mandatory subject of bargaining that must be bargained with the union.
  5. Company Reputation: This is the PR piece. How will your customers, clients, and the public react? Will being able to assure customers that your employees are fully vaccinated help your organization or business?
  6. Administrative Burden: Employers should also be prepared for the administrative burden— albeit slight—of verifying employee vaccination status. Although most organizations outside the health care setting are not subject to HIPAA, an employee’s vaccination status should be treated as confidential and recorded in a separate medical file (and not the employee’s personnel file). Note that it is perfectly lawful for an employer to ask an employee or job applicant about their vaccination status; simply inquiring about vaccination status is not a “disability-related inquiry” under the ADA.
  7. When the Rubber Meets the Road: A mandatory vaccination policy probably should be mandatory, meaning that employees who do not establish proof of vaccination or a qualifying disability or religious exemption lose their jobs. Will your organization be prepared to terminate employees when the rubber hits the road? If not, consider something short of mandating the vaccine, such as providing incentives, whether positive ($500 bonus, extra day of PTO, raffle, etc.) or negative (continued mask requirements for unvaccinated employees, excluding unvaccinated employees from certain work functions, etc.).

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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