Now that COVID-19 vaccines have arrived, employers are asking: can we really mandate vaccination? The general rule is yes, a mandatory workplace vaccination program is lawful under the American with Disabilities Act (ADA) and other Federal employment laws. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to address COVID-19 vaccines in the workplace. While many employers are excited about getting back to the office, employers must think practically before implementing a mandatory vaccination program.
A few initial notes: the guidance is neither binding nor law—it is the EEOC’s current views on existing law; the guidance looks to be aimed at non-healthcare employers; this addresses the EEOC’s views on the application of federal anti-discrimination laws, not state or local laws, which may differ.
First and foremost, any vaccination program must provide exemptions to employees on the basis of disability and sincerely-held religious beliefs. Disability and religious exemptions are defined broadly, but the EEOC has provided some helpful considerations. If an employee requests an exemption:
- On the basis of disability: (a) Will allowing the employee back into the workplace create a “direct threat”? A “direct threat” means significant risk of substantial harm to the employee or others—a test likely met in high-contact or high-risk workplaces. (b) Even if a “direct threat,” can the risk be reduced through reasonable accommodation without undue hardship to the business?
- On the basis of religion: In this scenario, no “direct threat” analysis is required, but the employer must conduct a similar reasonable accommodation analysis to determine whether there is a way to allow the employee to work on-site without causing undue hardship to the business.
- In either scenario: Even if an employee would pose a direct threat or accommodations would create an undue hardship, the employer should not automatically terminate the employee. The employer must first consider other options such as remote work and leave under law or employer policies.
Employers in “lower risk” work environments, such as typical office settings, might consider encouraging vaccination, rather than mandating vaccination. Employers might consider whether a mandatory policy is truly necessary and consistent with the employer’s business needs, particularly in light of other workplace controls in place (social distancing, facial coverings, remote working arrangements, enhanced cleaning, and disinfecting methods, etc.). A voluntary program may also provide morale benefits, employer cost savings, and reduced dispute and burden. The COVID-19 vaccine supply is very limited—in all reality, a mandatory vaccination program is futile until employees can access the vaccine. Before instituting any vaccination program, employers should keep their hand on the pulse of vaccination supply and future guidance from the EEOC and other federal, state, and local authorities. As with most things involving COVID, information and guidance is constantly evolving. Employers must heed the warning of the EEOC: “remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
Other practical concerns include:
- Recognizing an accommodation request and knowing to whom the request should be referred, including limiting medical documentation to HR employees and keeping the direct supervisor out of the process.
- Reimbursing employees for out-of-pocket costs related to obtaining the vaccine.
- Providing leave to those employees who take time off work to receive the vaccine or those who experience side effects as a result of the vaccine.
- For customer-facing industries, considering the expectations of customers.
- Documenting and Recordkeeping of employee medical files, maintained separately from other personnel documents.
- Evaluating current health insurance and wellness policies.
- Reviewing all collective bargaining agreements regarding employer’s right to make health policies.
- Remembering that vaccination of employees would not be grounds for your business to ease off the general obligation to provide a safe working environment and to maintain measures to reduce the spread of COVID-19 and other viruses and bacteria in the workplace as required by OSHA and consistent with CDC guidelines.
- Consulting counsel for guidance. PK Law Labor and Employment Attorneys are closely monitoring the guidance being issued by the EEOC and other federal, state, and local authorities on the vaccine issue. Click HERE to contact a PK Law Labor and Employment Attorney or contact email@example.com.
Charles Kassir is an Associate in the firm’s Labor and Employment Group. He graduated magna cum laude from the University of Maryland Francis King Carey School of Law in 2019. While in law school, Charlie served as Executive Articles Editor of the Maryland Law Review and was a Member of the Moot Court Board. After graduating from law school, Charles clerked for the Honorable Joseph M. Getty of the Court of Appeals of Maryland. He can be reached at 410-740-3148 or firstname.lastname@example.org.