As a baseline, an employment policy mandating vaccination must take into account compliance with the ADA and Title VII of the Civil Rights Act of 1964. The ADA generally requires employers to (i) avoid medical inquiries unless they are job related and consistent with business necessity (but simply requiring proof a COVID-19 vaccination will not be a medical inquiry), and (ii) offer accommodations to workers with disabilities which are reasonable and do not pose an undue hardship to the employer, unless the employer can show that an accommodation would pose a direct threat to the health of the employee or to others (which is a high burden). Title VII requires employers to consider reasonable accommodations to policies based upon sincerely held religious practices or beliefs which do not pose an undue hardship to the employer.
While we believe employers will be in a reasonably strong position to argue that mandatory vaccination policies will generally comply with the ADA and Title VII, these analyses must always be conducted on an individualized, case-by-case basis. Employers must keep in mind that there is no absolute rule that will always apply in every case.
Because the current vaccines are being allowed by the Food and Drug Administration under emergency use authorization (EUA), recipients must be informed that they have a right to refuse or accept administration of those vaccines. Employers could leave themselves vulnerable to claims of wrongful discharge in violation of public policy if they fire an employee who refuses a vaccine under the emergency use authorization status.
What to Watch For
While the EEOC has provided guidance for employers who want to move forward with a mandate at this time, some states are intervening in the interest of protecting individual liberties. Several state legislatures have introduced bills that would restrict government entities and employers from requiring the vaccine, with a goal of ensuring that it remains a personal choice.
Employers that mandate inoculation should have a plan in place for circumstances where employees request exemptions due to medical or religious reasons. Companies may need to make a case that granting an exemption would create a direct threat to others — a potentially effective argument given how contagious and dangerous COVID-19 is — and/or cause an undue burden for the employer.
Companies also need to have a plan for wage and hour compliance, much like they have for requiring workers to get COVID-19 tests. Notably, employers who mandate vaccination must consider the need to pay non-exempt employees for the time spent getting vaccinated, particularly if they obtain the vaccination outside of regular working hours.
The vaccine’s uneven supply chain is another area of uncertainty that employers will need to consider. Some estimates say that it could be late summer, or even the fall, before there are enough doses to vaccinate most of the U.S. population. Employers that mandate companywide inoculation might have to wait several months before getting compliance from the majority of the workforce.
Should You Require the Vaccine?
The issue of “can you mandate” is different than “should you mandate.”
Each employer must wrestle with this question. There are nuanced risk and policy considerations to determine how an organization approaches the vaccine. While vaccines are legally on the market, there are various unknowns about their long-term efficacy, and there are still open questions as to whether pregnant individuals can or should be vaccinated and when a vaccine for children might be available. Those are distinguishing factors between the COVID-19 vaccine and mandates for other vaccines that have full FDA approval.