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.
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.
1. May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?
Provided that employers comply with their obligations to accommodate employees with religious objections (under Title VII of the Civil Rights Act (Title VII)), a disability (under the Americans with Disabilities Act (ADA)), or other protected statuses under applicable federal or state law. Notably, even when accommodations are not warranted, employees must be free to refuse to be vaccinated, even if that means the employee will be subject to workplace consequences based on the refusal (e.g., not being allowed on Company property without vaccination, or even being terminated in certain circumstances).
From a federal perspective, the EEOC recently issued guidance addressing the COVID vaccine in the workplace. This guidance implies that mandatory vaccinations are permissible, subject to the accommodation considerations mentioned above and discussed in detail below. In part, this appears to be based on the conclusion that the vaccine itself is not a medical exam governed by the ADA. In contrast, the EEOC has taken the position that the questions typically asked prior to administering the COVID vaccine—namely, “Is there any medical reason you cannot have this vaccine?”— would elicit information regarding a disability and thus constitutes a disability-related screening governed by the ADA. Therefore, if an employer requires employees to get the vaccine, and administers the vaccination itself, the employer must be able to demonstrate that the pre-vaccination questions are “job-related and consistent with business necessity” in order to comply with the ADA. Given the nature of the COVID pandemic, an unvaccinated employee would likely pose a “direct threat” to others in the workplace (a position the EEOC has previously recognized), such that any screening involved in requiring and administering a vaccination would be “job-related and consistent with business necessity” and therefore permissible under existing ADA requirements. Were the EEOC to change its position on the COVID pandemic presenting a direct threat, this analysis may change.
2. May an employer require employees to provide objective evidence (like a vaccination card) to confirm they have been vaccinated?
The EEOC’s recent guidance states that asking an employee to show proof of vaccination is not a disability-related inquiry. However, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”
Therefore, an employer may:
- Require employees returning to work to provide Human Resources with documentation (a doctor’s note, or documentation from a healthcare clinic or pharmacy, depending on where they receive the vaccine) verifying the date(s) on which they received the vaccine, but the employer should instruct employees not to provide any other medical information as part of that documentation, in order to avoid implicating the ADA.
- Provide vaccinations at employer locations, similar to wellness checks or flu vaccinations. The provider the employer works with would have a roster for those who sign up, when they are scheduled to receive vaccination, etc. Notably, if an employer plans to cover the cost of these on-site vaccinations – including for employees not covered by their group health plan – there are additional benefits considerations that should be discussed with counsel in advance.
- If the employer will pay the cost of vaccinations obtained elsewhere, the employer may work with a preferred occupational health provider (e.g., the same medical provider used for pre-employment drug screenings or fitness for duty examinations prior to a return to work from an injury) to administer the vaccine and send confirmation to the employer (with the employee’s consent).
3. If an employer confirms that an employee submitted fraudulent evidence of vaccination, can the employee be disciplined?
This would be dishonesty, similar to an employee submitting false documentation/certification with respect to a request for FMLA leave, or a phony doctor’s note for an accommodation of a disability. The infraction leading to termination would be dishonesty. For the avoidance of doubt, to the extent an employer’s existing policies do not prohibit dishonesty, communications to employees concerning the mandatory vaccination program should inform employees of the consequences of submitting fraudulent information/documentation.
4. If an employer requires employees to get vaccinated / show proof of vaccination and does not offer the vaccine on site during work hours, is the time spent by hourly, non-exempt employees getting vaccinated compensable time that should be paid?
The Department of Labor (DOL) would likely take the position that time spent by a non-exempt employee obtaining a vaccine that is mandated by the employer is compensable. Accordingly, the more risk-averse approach is to pay such employees for the time. Even with long lines at some vaccination locations, most individuals can get through the process in under an hour, particularly as most sites are currently requiring registration and an appointment. If an employer is going to require the vaccine, the time spent getting the vaccine should be paid. Obviously, in the case of the two-dose vaccine, the time will be double, but still not a significant expense. Hourly employees should be advised to track time spent obtaining the vaccine and report that time to management, Human Resources, or Payroll.
5. In what circumstances do employers have accommodation obligations with respect to an employee who objects to, or is unable to receive, the vaccine?
The ADA and similar state fair employment practices laws require employers to provide "reasonable accommodations" to employees with medical conditions that would make them unable to be vaccinated. For example, the Food and Drug Administration (FDA) has recommended that people with certain allergies not get the COVID vaccine. There may be other medical reasons as well, such as having a compromised immune system, that prevent an employee from being able to be vaccinated.
Notably, a general fear of the vaccine is unlikely to qualify as a protected status. Especially under federal law, the guidance from the EEOC thus far has been that a fear of contracting COVID does not require accommodation, so a good argument could be made that other generalized fears (such as fear of vaccination), unless tied to a mental or emotional disability, similarly do not require accommodation.
Title VII and similar state fair employment practices laws protect employees who refuse to take a mandatory vaccine because of sincerely held religious beliefs. Membership in a church or even a belief in God is not necessary to substantiate a religious objection. A strongly or sincerely held moral or ethical belief would also likely be covered by the law, but political or general philosophical objections likely would not be covered by Title VII.
Some states (Colorado, for example) have statutes requiring accommodation of pregnancy or pregnancy-related medical conditions in a manner similar to that required for disabilities or religious objections. Therefore, employers should review applicable state law before responding to objections to vaccination based on pregnancy or a pregnancy-related medical condition - or take the risk-averse approach and simply treat pregnancy-based objections the same as objections based on religion or disability.
Other Protected Statuses
There are a number of state laws that, depending on the circumstances, could protect an employee who opposes vaccination. For example, if the employee’s opposition is tied to (or arguably could be tied to) a political belief/party affiliation, the employee could have protection in those states that prohibit discrimination on the basis of political belief (such as New York and the District of Columbia). Similarly, if an employee engaged in legal off-duty conduct (such as participating in a rally against vaccination), and the employer knew about this participation and the employee was later terminated or otherwise suffered some adverse employment action, the employee could have protection in those states that prohibit discrimination on the basis of legal, off-duty conduct (such as Colorado). A number of other states have also proposed legislation prohibiting discrimination on the basis of vaccination (such as Rhode Island), so further state law restrictions may be forthcoming.
Depending on the employer’s location and the location of the employee (particularly as many employees are currently working remotely), state laws should be carefully reviewed, and we recommend an employer seek advice of counsel if an employee raises a basis for accommodation the employer has not contemplated.
6. If an employee asserts a reason for refusing the vaccination that triggers a duty of accommodation, what supporting evidence may the employer request?
Depends on the reason asserted for refusing vaccination. As noted above, federal law recognizes two reasons for refusal that would require an employer to engage in the reasonable accommodation process, and the supporting evidence that may be requested is different for each.
- Disability: An employer may require the employee to provide documentation from a medical provider stating the employee’s impairment, how it affects major life activities, how it specifically prevents this employee from being vaccinated against COVID, and how long the impairment will last (i.e., can the employee never get a vaccine, or is there some reason he/she cannot get it right now).
- Religion: An employer’s ability to require documentation in support of a religious objection to vaccination is more limited. In some cases, an employer may seek confirmation that the belief requiring accommodation is: (a) sincerely held by the employee, and (b) actually religious in nature, rather than moral or philosophical. The following are some practical tips when dealing with religious objections:
- Ordinarily, Assume Sincere Belief: The definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, so the EEOC advises that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.
- If There Is A Basis For Questioning, Then Request Additional Information: If, however, an employee requests religious accommodation, and the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer may seek additional supporting information. For example, if an employee claims a religious objection to allowing man-made objects (such as a needle) to pierce his skin, but the employer knows that the employee received a vaccination against yellow fever for a trip to Africa, then the employer has an objective basis to question the sincerity of the professed belief.
- Do Not Demand Letter from Clergy: Employers may require third party verification, but should not insist specifically on a “note from a priest or clergy,” as one would request a note specifically from a medical provider with respect to a disability. The EEOC has found that “idiosyncratic beliefs” can be sincerely held and religious, and employees need not provide third-party verification from a church official or member. Instead, verification may come from another third party who is aware of the employee's religious belief or practice.
- Lower Bar for Undue Burden: The standard for demonstrating that a requested accommodation would pose an undue burden is much lower under Title VII than under the ADA. An accommodation causes an undue hardship under Title VII if it would impose anything more than a de minimus cost upon the employer’s operations, including effects on efficiency, staffing levels, safety, and other employees. Therefore, when and if you receive a religious accommodation request, keep in mind that it will be easier to reject based on it creating an undue hardship and employers should be sure to document any evidence of such hardship.
- Political/Philosophical Beliefs Not Protected: Some employees may refuse vaccination based on political or philosophical viewpoints. Those are not protected under Title VII. However, the line between religion and philosophy may be fact-specific: would a very serious vegan be entitled to protection because the vaccine requires the use/destruction of chicken eggs? Probably not, but some recent case law suggests that the answer is not cut-and-dry. As with an ADA request, employers should take each request individually and as a fact-specific request before demanding documentation or making a decision on a requested accommodation.
- Other Protected Statuses: As there may be different protected statuses and permissible documentation requirements in certain states, employers should consult with counsel when presented with a request for accommodation from mandatory vaccination.
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)?
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?
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?
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.
13. Should employers have a written policy or program? What about training?
Yes and yes.
Having a written policy or program will help ensure that employees have notice of the program and understand how and when the program applies to them and the ramifications of non-compliance. It can also establish a process for requesting an accommodation and emphasize the employer’s commitment to legal considerations, such as confidentiality. Managers and Human Resources professionals should receive training to ensure the program is implemented consistently and in compliance with accommodation and anti-retaliation obligations.
14. If an employer requires vaccination and an employee has a negative reaction or side effects, what protections does the employer have to a potential claim?
If an employer mandates vaccination and an employee becomes ill or injured as a result of the vaccination, it is likely that the illness or injury will be deemed to have arisen out of and in the course and scope of employment, such that the illness will be covered by workers’ compensation laws. Every state is different, particularly regarding the application of the exclusive remedy doctrine for workplace injuries or illness. Employers should also confirm whether the applicable state’s workers’ compensation laws have addressed the vaccine and potential adverse reactions, and continue to monitor guidance from relevant federal, state, and local authorities. We also recommend that employers consult with their workers’ compensation carrier or third party administrator for additional input when implementing a mandatory vaccination policy or program.
15. May an employer require some, but not all, employees to get vaccinated? For example, should employers mandate vaccines for some workers (those who are essential) but not others (those who can work remotely)? What distinctions should be made for those employees where mandatory vaccines are required?
Vaccine programs are relatively novel and implicate a number of federal and state employment laws; as such, there can be significant risk associated with them. Before implementing a mandatory program, employers should ensure that the program is narrowly tailored to address risks/concerns associated with COVID in the workplace (as opposed to out in public, beyond the workplace). If an employer determines to implement a mandatory program, it is a best practice to require the vaccine (with exceptions for disabilities, religious beliefs, etc.) only for employees who are present on-site. If a remote worker (a telemarketer working from home, for example) has no reason to come on to the employer’s premises, there is no real reason to require such employees to be vaccinated. The employer may, however, restrict access to workplace premises to only those who have been vaccinated.
16. If an employer is considering vaccinations on employer premises, any do’s and don'ts?
Employers who distribute the vaccine (or contract with a third party to distribute the vaccine) to employees – either on or off site – must be mindful of ADA and Genetic Information Nondiscrimination Act (GINA) obligations. As noted above, guidance from the EEOC suggests that the CDC-recommended standard pre-vaccination screening questions could reveal information about a disability. As such, before conducting any pre-screening of employees, the employer will have to show that the screening questions are “job-related and consistent with business necessity” (i.e. that if the employee does not answer the questions – and thus does not receive the vaccine – the employee will pose a direct threat to the health or safety of himself/herself/others). This analysis will need to be undertaken on an individual basis and clearly documented. The EEOC’s guidance does not make clear whether the pre-screening questions will elicit information about genetic information (and thus implicates GINA). Unlike the ADA, there is no “direct threat” exception under GINA. As such, if the pre-screening questions do disclose genetic information (including family medical history information), then the only way the employer can collect such information is if the employee voluntarily makes the disclosure (and therefore voluntarily participates in the vaccination program).
Rather than distributing on-site, a better option may be for employers to require employees to simply show proof that he/she has received the vaccination. Any documentation regarding vaccination should be kept confidential, and the employer should be sure not to ask any follow up questions that are likely to reveal information about a disability or genetic information.
17. What are the high level issues an employer should consider regarding whether to implement a vaccine policy or program?
Timing – Right now, implementing a mandatory vaccination program may result in a lot of empty workplaces because there is not currently widespread availability. We do not recommend implementation of a mandatory vaccine program until it appears that there is ready access to the vaccine to the public at large. Even then, an employer will need to consider a reasonable time period in which to get the vaccine, and for those employees who are receiving the two-dose vaccine, how much time will be permitted, and whether employees who have only received dose one can work, or whether the second dose is required.
Scope of Exceptions – The scope of permissible objections based on religion, disability, or other grounds is fairly broad, which will prevent most employers from successfully getting the entire workforce vaccinated.
Potential Scrutiny of Exception Determinations – In recent years, the EEOC has given particular attention to employee claims regarding religious objections to mandatory vaccine programs. As such, if challenged, an employer’s religious accommodation determinations are likely to be subject to scrutiny by the EEOC, companion state fair employment practices agencies, and courts.
Administrative Burden - Determining whether an employee qualifies for an accommodation is an individualized process that may be time-consuming in some cases. Accommodation determinations should be clearly documented and maintained in accordance with applicable federal and state privacy laws.
Response to Employee Refusal – Because COVID vaccines are novel, more employees may object to receiving the vaccine, especially early on. Additional protocols for reviewing accommodation determinations and responding to employees who do not qualify for an accommodation but still refuse the vaccine may be necessary. As with all Human Resources policies, any protocols that are developed will need to be consistently applied to avoid disparate treatment claims. Additionally, as the vaccine becomes more widely disseminated and public health officials learn more, the program may need to be adjusted or modified.
Employee Morale – Implementing a mandatory program may be viewed as draconian, especially if employees have an adverse reaction to the vaccine (although such illness/injury is likely covered by workers’ compensation laws). On the other hand, employees who have not yet returned to the office may be unwilling to do so without assurance that the vaccine will be required in order to protect their health and safety.
Impact on Other Healthy Hygiene Habits – Given that most employees will be vaccinated, employees may lower their guard and fail to take other reasonable precautions, such as washing hands, covering coughs and sneezes, and staying home when sick. Employers should continue to stress that employees be diligent in following all required social distancing, masking and other workplace mitigation protections. Employers should also be cautious before relaxing other restrictions (such as reopening cafeterias, holding large meetings, etc.).
Workers’ Compensation Considerations – It is likely that negative reactions or illnesses from a mandated vaccine would be covered by workers’ compensation laws. We recommend that an employer considering such programs discuss the issue with the employer’s workers’ compensation carrier and/or third party administrator to confirm coverage issues and to align with this important stakeholder.