Saul Ewing Arnstein & Lehr LLP

On December 11, 2020, the Food and Drug Administration issued emergency use authorization (EUA) for a COVID-19 vaccine developed by Pfizer. On December 18, 2020, the FDA granted similar approval to a vaccine developed by Moderna. Approximately 100 million doses are expected to be distributed by the end of February. Wider distribution will occur over the next six months or longer, based upon manufacturing capacity for these and other vaccines still in clinical trials.

The availability of these vaccines, even to a limited population at the outset, raises questions about whether employers can require their employees to receive the vaccine. On December 16, the Equal Employment Opportunity Commission amended its technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address common employer questions regarding the vaccine. We anticipate that after the holidays, other federal agencies including OSHA, state legislatures and governors may start looking at the issues of mandatory vs. voluntary vaccines in public and private workplaces, schools, public accommodations and other settings. Employers need to watch for new developments.

Below, are the most common questions we have been hearing from employers and our guidance. We will be periodically updating and revising these FAQs.

Can an employer mandate that all of its employees get a vaccine when it is available to them?

There may be existing rules or contracts that prevent a particular employer from doing so unilaterally. Public employers will be subject to state and local personnel rules or laws. When employees are covered by a collective bargaining agreement, the employer will need to determine if this is a mandatory subject of bargaining.

Subject to any new or existing laws applicable in the employer’s industry, an employer may require employees to get the vaccine as a condition of continued employment. However, at the current time, the more prudent approach is to encourage employees to get the vaccine, but not mandate it.

Employees of private employers may raise religious objections under Title VII and state laws. Employees of public employers may raise First Amendment objections as well. This may include request for a waiver of a vaccination mandate as a reasonable accommodation of their religious beliefs. The EEOC has confirmed that these objections must be considered on a case-by-case basis. There may be situations in which the burden of waiving the requirement for a vaccine (e.g., the risk to others) is more than de minimis, which is the standard under Title VII.

At this time, employees with certain medical conditions may be recommended to not get the vaccine. Some experts have suggested caution about women who are pregnant or breastfeeding until there is more data. The list may change as more information is obtained. While most of the side effects reported are normal for any type of vaccine, there could be some medical conditions where there is a higher risk that may justify a person with a disability waiting. The EEOC has confirmed that these must be considered as possible reasonable accommodations under the ADA. In determining whether to waive a vaccine requirement, employers should follow their ADA accommodation process, including requiring documentation and questioning that documentation if it is incomplete or unclear.

Why shouldn’t employers mandate the vaccine at this time?

The vaccines are still experimental, having been approved on an emergency basis. It could be a year or more before the FDA gives final approval. In the past, courts have been reluctant to uphold a mandate that individuals receive an experimental drug or vaccine.

There is still a lot we do not know, and will not know for many months until there is more data. The Pfizer and Moderna vaccines were highly effective during clinical trials in providing a robust protective immune response that will protect the vaccinated person. It is unclear whether a vaccinated person, though not ill, can still carry and spread the COVID-19 virus. That is why the CDC is recommending that those who are vaccinated still wear masks and practice social distancing.

We do not know how long any immunity will last. The evidence is that the vaccines will last longer than the immunity from having COVID-19, but we do not know how frequently boosters will be needed.

As new vaccines are approved, they may have different levels of effectiveness, but be easier to manufacture and distribute. At some point, there may be choices, and the employer would have to decide whether to mandate a particular vaccine, or leave that to the employee and their physician.

Polls show there is a significant percentage of adults who are cautious about a new vaccine, in addition to those who are anti-vaccine.

What if an employee refuses to get the vaccine due to a disability?

If an employee refuses to get a vaccine for a disability-related reason, the EEOC says that the employee cannot be excluded from the workplace unless the 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.” 29 C.F.R. § 1630.2(r).

It is not easy to establish a “direct threat.” In making this determination, an employer should consider (1) the duration of the risk posed; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. If an employer determines that an unvaccinated employee will pose a direct threat in the workplace, the employer must then engage in the interactive process: is there a reasonable accommodation that the employer could provide that would eliminate or reduce the risk posed by the unvaccinated employee?

The challenge for many employers is that millions of workers have been at their jobs this year without being vaccinated. CDC and OSHA have had best practices for operating a safe workplace without vaccines, including masks, social distancing and good ventilation. The employer would have to demonstrate that despite all of these precautions, or others, having this employee at work would be a direct threat to themselves or others.

If there is no reasonable accommodation that would reduce the risk, the employer can exclude the employee from the workplace. In some industries, exclusion from the workplace will, necessarily, lead to termination of the employee’s employment. However, there are industries in which the employee can perform work remotely.

If an employee must be excluded from the workplace and cannot perform work remotely, the employee may be eligible for leave under the Family Medical Leave Act (FMLA) or the Families First Coronavirus Response Act (FFCRA).

What if an employee refuses to get the vaccine based on a sincerely held religious practice or belief?

An employer must provide employees with reasonable accommodations for the employee’s sincerely held religious belief, practice or observance where it would prevent the employee from receiving the vaccine. The reasonable accommodation cannot impose an undue hardship, which is defined as an accommodation having more than a de minimis cost or burden on the employer.

Religion is interpreted broadly and includes beliefs, practices and observances with which an employer may not be familiar. Ordinarily, an employer should assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, where an employer has an objective basis for questioning the religious nature or sincerity of a belief, practice or observance, the employer may request additional supporting information.

The analysis will be similar to that under the ADA, but there a lower level of what is considered an undue hardship. However, the Supreme Court and other federal courts have been far more sympathetic in recent years to religious objections.

If an employer is unable to provide a reasonable accommodation that allows the employee to remain in the workplace, the employee may be excluded from the workplace. In some industries, exclusion from the workplace will, necessarily, lead to termination of the employee’s employment. However, there are industries in which the employee can perform work remotely.

Can or should an employer offer vaccines in the workplace as they become more widely available?

Yes, but they should do so with caution. The vaccines currently available are experimental and have been approved for use on an emergency basis. An employer considering providing the vaccine at the workplace should consider all of the risks.

The EEOC also notes that the pre-vaccination screening questions for the current vaccines are disability-related inquiries, and may involve disclosure of confidential genetic information, and are subject to the ADA and GINA. The employer would have to defend these inquiries as job-related and consistent with business necessity, and keep the information as confidential medical information. These issues can be avoided if the vaccine is administered outside the workplace by a third-party (e.g., pharmacy or doctor).

Can an employer incentivize employees to get vaccinated?

Yes, but it should be framed appropriately. For example, instead of rewarding employees for getting the vaccine, an employer might choose to provide a stipend to reduce the burden of the vaccine. If, for example, the vaccine is provided at a charge, the stipend could cover some or all of the cost. If the vaccine is free, an employer could offer a small stipend to employees who receive the vaccine to compensate them for the cost or burden of receiving the vaccine, such as traveling to the vaccination location, waiting in line, and experiencing any of the normal mild side effects the vaccine may cause.

Because employees may decline to get the vaccine for any number of reasons, only some of which relate to their membership in a protected class, legal risks arising out of unequal treatment are reduced.

Can an employer ask employees if they’ve received the vaccine?

Yes, an employer can ask an employees if they’ve received a vaccine. Additionally, an employer may ask an employee to provide proof that the employee has received a vaccine.

The EEOC has clarified that such inquiries are not disability-related because the employee’s answer does not necessarily reveal the employee’s medical condition. By way of example, if an employee answers that they have not received the vaccine, there are multiple reasons why they may not have received it, not just medical reasons.

We recommend that if an employer requires employees to provide documentation showing that they have received the COVID-19 vaccine, that they instruct employees to provide only information regarding the vaccine, to the exclusion of the employee’s other medical information.

There are also legitimate business reasons to keep track of the number of employees who are vaccinated as part of the employer’s overall safety program. This data, together with information about the risk of transmission by people who are vaccinated, can inform the employer’s decisions about re-opening or expanding the number of individuals at work.

Can or should an employer require employees who are vaccinated to return to work, or require those not to stay home?

Our advice is the same as mandates. In many situations employers could take these steps, but we recommend against them. In the short term, other than first responders, the priority for vaccination is those who are most vulnerable based upon age or medical conditions (i.e., disabilities). Requiring older employees and those with disabilities to come into the office or workplace, while permitting younger and healthier employees to continue to work remotely, invites legal claims.

Employers who are asking this are also making the erroneous assumption that those who are vaccinated are at no risk to themselves or others. The latter is still unknown.

The ability to bring employees back to work safely is something essential industries have been addressing all year. It is a balance of what is permitted under local executive orders, the ability to enforce mask mandates and social distancing, customer contact, ventilation, safe public transportation and many other factors. The number of employees vaccinated is going to be an important factor, but should not be decisive.