COVID-19 vaccines are becoming increasingly available across the United States, and businesses across the country are preparing to return to the office. However, a recent poll found that 1 in 3 Americans say that they definitely or probably will not get the COVID-19 vaccine.1 This is discouraging news for employers counting on the vaccine as part of their plan to safely return employees to the workplace without burdensome protective measures, and to reduce the fear of, and risks associated with, virus outbreaks at work. As COVID-19 vaccines become increasingly available to their employee population, many employers are considering whether to mandate the vaccine as a condition of returning to work or, in the alternative, simply encourage employees to get vaccinated. The answer is not that simple.
The Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH) each have published guidance indicating that private employers may require employees to receive a COVID-19 vaccination as a condition of returning to the workplace. Notwithstanding, mandatory vaccination policies may have to yield to employees and applicants who are unable to receive the vaccine due to a disability or sincerely held religious belief. In addition to these and other legal considerations, employers considering mandatory vaccine policies should carefully consider whether a mandatory vaccine policy is advisable given the practical implications of requiring employees to be vaccinated before permitting them to return to the workplace.
1. A Mandatory Vaccination Policy May Have to Yield to Employees with a Disability
The EEOC's guidance reminds us that the Americans with Disabilities Act (ADA) permits employers to implement a "qualification standard" that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."2 Such a safety-based qualification standard can include a vaccination requirement. However, the EEOC has explained that if the vaccination requirement "screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a 'significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.'"3 This means that if an employee is a) unable to receive the vaccine due to a disability or b) objects to the vaccine on the basis of a disability, before excluding the employee from the workplace, an employer must make a determination that the employee's presence would pose a "direct threat" to him/herself or to others at the workplace. Whether the employee poses a direct threat is based on the analysis for four factors: 1) the duration of the risk posed by the employee; 2) the nature and severity of the potential harm caused by an employee's physical presence at the worksite; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.
According to the EEOC, a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to COVID-19 at the worksite. If an employer concludes that the employee poses a direct threat, it must next assess whether it can provide a "reasonable accommodation" to eliminate or mitigate the risk while still permitting the unvaccinated employee access to the worksite, without posing an "undue hardship"4 to the company. The availability of a reasonable accommodation is determined on a case-by-case basis, based on a flexible, interactive process between the employer and employee. Potential accommodations may include job restructuring, job reassignment, modification of work practices, or adjusting the employee's duties to minimize risk of transmission (provided, of course, nothing obligates an employer to change or remove an employee's essential job functions as an accommodation). According to the EEOC, the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. If there is a reasonable accommodation that enables the unvaccinated employee to return to the workplace without posing a significant risk of substantial harm to the health or safety of the individual or others, the accommodation must be instituted so that the unvaccinated employee may access the worksite.
The EEOC makes clear that an employer cannot require a disabled employee to work remotely if there is another reasonable accommodation that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat in the worksite.5 Employers can exclude the employee from the workplace only if there is no accommodation that can be provided that reduces the direct threat to an acceptable level, or the disabled employee requests remote work as an accommodation. If an employer establishes that the disabled employee is unable to perform the employee's essential functions without endangering the employee's or others' health and safety even with a reasonable accommodation, and the employee cannot perform his or her duties remotely, the employer still must assess whether the employee is eligible to take legally permissible leave.
It is imperative that employers also review applicable state law when assessing the requirement to accommodate an employee. For example, while neither pregnancy alone nor breastfeeding is considered a disability under the ADA, the New Jersey Division on Civil Rights recently published guidance stating that employers must engage in an interactive accommodation process if an employee is pregnant or breastfeeding and has been advised by a doctor not to get a COVID-19 vaccine.6
2. A Mandatory Vaccination Policy May Have to Yield to Employees with a Sincerely Held Religious Belief, Practice, or Observance
Under Title VII, an employer is required to reasonably accommodate employees who have a "sincerely-held religious belief," practice, or observance that prevents them from being vaccinated, unless doing so is an "undue hardship."7 According to the EEOC, an employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, then the employer may request additional supporting information in order to determine the sincerity of the religious belief.
For employers in California, unless specifically requested by the employee, an accommodation related to religious belief is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. As with employees with disabilities, even if an employer determines that there is no reasonable accommodation available that sufficiently reduces the risk that an unvaccinated individual poses in the workplace, an employer should not terminate the employee without considering whether the employee may have other rights under federal, state, or local law.
3. A Mandatory Vaccination Policy May Form the Basis for Disparate Impact and Retaliation Claims
Employers should consider the legal risks stemming from an adverse employment action against an employee based on a refusal to vaccinate, even with regard to employees who do not seek disability or religious exemptions. For example, if the mandatory vaccination requirement has a disparate impact on a protected group, such as pregnant women or a particular racial group, that group may have a basis for a discrimination claim.
Further, California DFEH's guidance makes clear that an employer cannot discipline or otherwise retaliate against an employee for requesting an accommodation or for engaging in any other protected activity related to a vaccination policy or practice, such as alleging that the employer's vaccine policy intentionally discriminates on the basis of race, national origin, or another protected characteristic, or has a disparate impact on a protected group.
4. A Mandatory Vaccination Policy May Give Rise to a Claim for Wrongful Termination
Employers should be mindful of the impact that the FDA's authorization of the available COVID-19 vaccines under an Emergency Use Authorization (EUA) may have on the legality of mandatory vaccine policies. The federal statute governing EUA approval provides that individuals to whom such a vaccine is administered must be informed of the known and potential benefits and risks of its use "and of the option to accept or refuse administration of the [vaccine]…"8
In fact, a lawsuit was recently filed in New Mexico against a public employer challenging a mandatory vaccine policy based on the theory that the employer is precluded from requiring employees to get a vaccine issued under an EUA. Employees who are disciplined or terminated for refusing to be vaccinated (including those who are not subject to any exception as discussed above) may dispute the legality of a mandatory policy under this legal theory, despite the fact that the EUA statute addresses the actions of federal officials rather than private actors.
5. Employers May Ask for Proof of Vaccination but Must Beware of Making Disability-Related Inquiries and Must Maintain Vaccination Records as Confidential
Employers may request proof of receipt of a vaccine without implicating the ADA. However, employers should beware that questions that may naturally follow a request for proof of vaccination, such as asking why an individual did not receive a vaccination, may constitute disability-related inquiries because they may elicit information about a disability. Further, documentation of vaccination status could potentially include disability-related medical information. As such, employers should warn employees not to provide any medical information when providing proof of vaccination, and instruct supervisors not to make such inquiries.
Employers must be mindful to maintain all records regarding employee vaccination status or disability-related exemptions as confidential medical records, separate from personnel files, in locations accessible only to authorized personnel.
6. A Voluntary Vaccination Program Avoids Many of the Legal Risks Identified Above
Employers may consider implementing a voluntary vaccination policy to avoid the majority of the legal implications of a mandatory policy. For example, employers will not need to accommodate disability or religious based objections to a voluntary policy or consider disparate impact or wrongful termination claims. Many employers are assessing whether to offer incentives as a way to encourage employees to get vaccinated. Employers should consult with legal counsel to help design legally permissible incentive programs in the context of a voluntary vaccination policy.
Employers considering how to navigate workplace vaccination policies should first ascertain how many employees have received or plan to receive the vaccine before returning to work, and which employees plan to decline the vaccine. This information, which an employer can permissibly obtain, will help inform whether a mandatory policy is necessary and appropriate. For example, if a substantial number of employees will not be vaccinated even without a qualifying reason for an exemption, it may not be practical to implement a mandatory program that may result in mass employee terminations. If only a small portion of the workforce will not be vaccinated, the employer may determine, based on all of the circumstances of the business and the working environment, that the unvaccinated employees may safely return to the workplace. Alternatively, the employer may design an incentive program targeted to motivate the unvaccinated portion of the workforce to obtain the vaccine. Determining the vaccination status of the workforce is an important first step in considering the vaccination policy that is appropriate for a particular business. In any event, employers should continue to monitor federal, state, and local guidance regarding any return to work requirements, as well as what steps employers must take to mitigate COVID-19 risks even after employees return to the office. Indeed, for the foreseeable future, such protective measures will likely be important to any successful return to work endeavor.
 “Undue hardship” under the ADA is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.
 Courts define “undue hardship” under Title VII differently than under the ADA as having more than a de minimis cost or burden on the employer, although some state and local laws apply the same undue hardship standard for disability and religious accommodation assessments.
 21 U.S. Code § 360bbb–3(e)(1)(A)(ii)(III) (emphasis added).