Take COVID-19 Vaccine or Else: Legal Pitfalls for Employers

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Holland & Hart - Employers' Lawyers

The imminent availability of a COVID-19 vaccine has garnered massive public attention. Perhaps the most pressing question from Colorado employers is, “Can employees be required to take the vaccine once it’s available?” Perhaps, but state law presents additional considerations beyond federal disability and religious discrimination concerns, labor laws, and employer liability issues.

Federal considerations about mandatory COVID-19 vaccinations

Disability and religious discrimination under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, employer liability under workers’ compensation laws and the Occupational Safety and Health Act (OSH Act), and labor law issues under the National Labor Relations Act (NLRA) all present significant challenges to employers looking to implement mandatory COVID-19 vaccinations, each of which could be the subject of an entire article.

Disability discrimination. You can’t mandate vaccinations under the ADA unless they’re “job-related and consistent with business necessity” (including when necessitated by a “direct threat”). Assuming a COVID-19 shot would satisfy the standard, the Act still requires exemptions if employees have ADA-covered disabilities that may prevent them from taking the vaccine.

For ADA-protected employees, you must consider “reasonable accommodations” such as an exemption or additional personal protective equipment. The Act requires you to explore and resolve the issues through the interactive process and provide accommodations absent undue hardship.

Religious discrimination. Title VII requires you to accommodate employees who can’t take a vaccine because of a sincerely held religious belief, practice, or observance. Just as with the ADA, you must reasonably accommodate employees’ qualifying religious objections under Title VII, at least absent “undue hardship” to the business, although the standard in the religious context is less stringent for employers than under the ADA.

Employer liability. You may encounter pitfalls both for requiring and not requiring COVID-19 vaccinations. For mandated shots, you must consider the possibility of liability if employees have adverse reactions. Although the law is unsettled, mandatory vaccinations may form the basis of a viable workers’ comp claim, the laws for which vary from state to state. In Colorado, however, workers’ comp laws supplant traditional tort-based claims (e.g., negligence) and remedies for employees injured on the job.

As for the latter concern (not mandating the vaccine), the OSH Act’s General Duty Clause requires you to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. They may argue any workplace that doesn’t mandate vaccines against COVID-19 violates the provision, although other protective measures (e.g., social distancing and masking) are likely sufficient to satisfy the standard.

Labor law. Finally, mandating vaccinations could implicate potential labor law issues. Public and private COVID-19 responses—and vaccinations in general—have become highly politicized, and it’s possible a mandatory shot policy will face resistance from certain employees or groups of workers. Whether union or nonunion, the individuals would have the right under the NLRA to engage in protected, concerted activity and protest the company’s actions, and you could be liable for disciplining or terminating the employees for the conduct.

Further, in union shops, requiring vaccinations could be a mandatory subject of bargaining with the union, absent sufficient employer discretion under the specific terms and conditions of an applicable collective bargaining agreement. Even under such circumstances, however, you may be required to engage in “effects bargaining” with the union to discuss the program’s implementation and effect on represented employees.

Additional Colorado considerations

Colorado law presents some additional wrinkles for employers to consider when deciding whether to implement mandatory COVID-19 vaccinations.

Whistleblower protections for public health emergencies. In the past summer, Colorado enacted additional whistleblower protections for employees in response to public health emergencies. The new statute prohibits employers from taking adverse action against employees who raise good-faith concerns about workplace violations of government health or safety rules or “about an otherwise significant workplace threat to health or safety” related to a public health emergency if the employer “controls the workplace conditions giving rise to the threat or violation.”

The statute clearly protects employees from retaliation for calling out an employer’s failure to abide by health and safety rules pertaining to COVID-19. But what if an employee believes in good faith that a mandatory vaccination requirement is a significant workplace threat to health or safety? The statute does exclude protections for workers who disclose information “with reckless disregard for [its] truth or falsity.” It’s difficult to say, however, whether the coronavirus vaccination information beliefs are indeed “reckless,” particularly since the vaccines are being distributed under the U.S. Food and Drug Administration’s (FDA) emergency use authorization powers, which don’t require as much scrutiny as typical FDA licensure.

Colorado’s lawful off-duty activities statutes. Colorado law prohibits employers from terminating employees for engaging in lawful activities during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities/responsibilities of an employee or a particular group of workers. Thus, an employee could engage in vocal antivaccination protests or advocacy on his own time. If the employer terminated him for the activities (perhaps because they undermined coworkers’ faith or trust in the mandatory vaccinations), the firing could run afoul of the statute.

Similarly, if the same employee refused to get vaccinated and the employer fired him for the same reasons, he could at least attempt to argue his lawful off-duty activity was the actual cause of the termination, rather than any refusal to get a shot.

State law standards for religious, disability discrimination. The federal definition of what constitutes a “religion” is exceptionally broad and may include all aspects of religious observance and practice as well as belief (regardless of whether the practices are viewed as unorthodox or shared by only a small fraction of the population). The scope of “religion” under the Colorado Anti-Discrimination Act (CADA), however, is arguably broader.

Colorado defines “religion” as all aspects of religious observance, belief, and practice, and a person doesn’t need to be a member or follower of a particular organized religion, sect, or faith tradition to have a religion. Moreover, unlike Title VII and the ADA, which apply only to employers with 15 or more employees, the CADA applies to all employers regardless of size.

Conclusion

The issue of mandatory workplace vaccinations for COVID-19 will only continue to intensify as the vaccines roll out to the general public in the coming months. Suffice it to say, employers face significant legal pitfalls and challenges on both the federal and state level. Absent additional guidance from federal and state regulatory authorities—e.g., the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), and the Colorado Civil Rights Division—it may be more prudent for you to strongly encourage vaccinations while continuing to implement protective measures such as masks, social distancing, sanitary measures, and remote work.

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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