Have You Thought About … Requiring Employees to Get a COVID-19 Vaccine?

Brownstein Hyatt Farber Schreck

Brownstein Hyatt Farber Schreck

With COVID-19 vaccines now being distributed, an end to the pandemic may be in sight in the coming months. What is collectively known as the “new normal” still comes with a minefield of unanswered questions, particularly for employers, and the vaccine is no different.

Contending with the polarization of vaccine skepticism and the country’s desire to return to “normal” in the wake of a global pandemic, many are wondering: Can employers require employees to get vaccinated?

The Question is Premature for Most Employers. This question is premature for most employers, outside of the context of health care providers, first responders and others designated by individual states and counties. The vaccine won’t be widely available for several months. (The question of mandating vaccines is currently premature even for health care providers. At this time, health care facilities generally are not mandating the vaccines because of the very limited supply; rather, they are dividing workers into tranches prioritized based on their roles, and providing the vaccine to those workers who elect to receive it as it becomes available. The question of mandating the vaccine will not come into play until it becomes more readily available.) Moreover, the legal issues surrounding mandatory COVID-19 vaccines are currently unsettled, but are likely to be fleshed out in the coming months.

Ordinary Mandatory Vaccine Considerations. Ordinarily, employers can require vaccinations subject to business considerations, taking into account accommodations that may need to be granted with respect to the Americans with Disabilities Act (ADA), medical conditions and religious accommodations. Considerations under the ADA and other medical issues may include pregnant women or high-risk employees (e.g., those with a strong allergy to vaccine components) for whom the vaccine is not advisable. Requests for religious accommodation may be based on objections to the concept of vaccines generally, or the particular vaccine itself (e.g., gene-based vaccines). The ADA, medical issues and religious accommodations are the standard considerations in analyzing whether vaccines like those for influenza may be mandated.

Issues Specific to the COVID-19 Vaccine. The situation here is different, though. Unlike influenza and similar vaccines, which are time-tested and have full FDA approval, the COVID-19 vaccines being developed are seeking approval under the more unusual procedure of “Emergency Use Authorizations” (EUAs), which have very different standards. At least in the near future, there are likely to be limitations on the ability to mandate vaccines approved under EUAs. Whether employers can mandate the vaccine (upon threat of employment termination, exclusion from the workplace or otherwise) is dependent on the regulations issued in connection with the EUA for specific vaccines. By the time most employers will be considering mandating a vaccine for their workers, however, the vaccines may have “full” FDA approval.

New EEOC Guidance. The Equal Employment Opportunity Commission (EEOC) issued guidance today addressing some of the issues likely to arise with respect to COVID-19 vaccines in the employment context (the “EEOC Guidance”). The EEOC Guidance seems to assume that vaccines may be mandated once FDA approval is received, subject to accommodations for medical and religious reasons. While vaccines will not be considered a “medical examination” for purposes of the ADA, where the employer mandates the vaccine and either administers it directly or through a contracted third party, pre-screening questions may implicate the ADA. In that case, the employer would have to show that the screening inquiries were “job-related and consistent with business necessity.” To meet this standard, the employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and as a result does not receive the vaccination, will pose a direct threat to the health or safety of the employee or others. Pre-screening questions also may implicate the Genetic Information Nondiscrimination Act (GINA), depending on the nature of the questions. However, allowing employees to obtain the vaccine through their chosen health care provider does not implicate the ADA, nor does merely requiring employees to show proof of vaccination. Similarly, these issues are avoided to the extent an employer does not mandate vaccination.

To the extent an employer mandates vaccination, whether the employer can exclude from the workplace an employee who cannot or will not obtain a vaccine requires an individualized determination of whether a direct threat exists, and assessment through the interactive process of what accommodations, if any, can be provided to reduce the risk to an acceptable level. The EEOC Guidance indicates that the prevalence in the workplace of employees who already have received COVID-19 vaccinations, and the amount of contact with others whose vaccination status could be unknown (e.g., customers or the general public), may impact the analysis. Employers are advised to look to guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). If an employee cannot safely be allowed in the workplace even with reasonable accommodations, the employer must look to other potential accommodations, such as remote work or providing leave under the Families First Coronavirus Relief Act (FFCRA), prior to terminating employment. The EEOC Guidance also reminds employers about maintaining confidentiality of medical information obtained, as well as prohibitions on retaliation for seeking an accommodation.

Employers mandating vaccinations are advised to follow a similar process for objections to vaccines based on sincerely-held religious beliefs and practices.

Should Employers Mandate Vaccines, Assuming They Can? Beyond the question of whether employers can mandate the vaccine (and the logistics of that process) is whether they should—for example, there will be an impact on employee morale either way, and exceptions will need to be granted. Other questions abound: When will vaccines be readily available (the current estimate is second quarter of next year)? Will time spent getting vaccinated be compensable work time? Will time that an employee may be unable to work due to side effects be covered by federal, state or local COVID-related paid sick leave? Will the employer be responsible for adverse reactions and if so, will workers’ compensation cover that? Will employees or employers have a choice as to which vaccine they get (e.g., whether it is one that involves messenger RNA (mRNA) technology or otherwise, the most effective vaccine or the one with fewest side effects)?

Considerations Moving Forward: At present, for most employers, the decision as to whether to mandate vaccines is months away, and the law (and lawyers’ recommendations) in this area will develop further in the interim. In the short-term, the initial phase of vaccines, which will include health care workers, first responders, the elderly and similar “priority vaccine recipients,” will help develop the law and determine whether and in what circumstances vaccines can be mandated. Employers should monitor the situation and consider these issues, as well as the additional considerations that doubtless will be implicated, and work with legal counsel if they plan to implement vaccine mandates.

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Brownstein Hyatt Farber Schreck

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