With how disruptive the COVID-19 pandemic has been for businesses around the world, employers are eager to get their workforce back to “normal” as soon as possible — and yet that desire forces new questions about vaccinations and related mandates.
When you’re dealing with a legal issue that has never been addressed before, knowing where to begin can feel overwhelming. Added to that, the new laws are wide-ranging and CDC and other guidance is often changing, particularly as we learn more about emerging variants, the status of FDA approval for COVID-19 vaccines, the potential need for booster shots, and more.
President Biden’s COVID-19 Action Plan announced that OSHA is developing a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing for unvaccinated workers and issuing an Emergency Temporary Standard (ETS) to implement this requirement. Additionally, at the state and local level, conflicting approaches create compliance challenges for multi-jurisdictional employers.
Fortunately, the attorney-editors at Practical Law monitor vaccine mandate and prohibition updates and developments so that you don’t have to. They’ve also compiled resources that address and provide solutions to some of the most common questions regarding COVID-19 vaccinations and the workplace.”
There are a variety of factors to consider in the context of mandatory workplace vaccinations, and employers should carefully consider these issues before deciding on a specific policy approach.
Can employers require employees to get vaccinated?
Guidance from the Equal Employment Opportunity Commission (EEOC) indicates that a mandatory vaccination program is not prohibited under federal anti-discrimination laws but must account for potential accommodation obligations and other legal nuances. We can expect more litigation in this area, especially as more employers implement mandatory vaccination policies.
Most importantly, employers must understand and comply with their duty to accommodate an employee’s sincerely held religious belief or disability. Employers also need to be aware of the latest guidance with respect to accommodations and the interactive process to ensure they are complying with their legal obligations.
Even if employers can require employees to get vaccinated, should they?
Although there are definite benefits to requiring employees to get vaccinated, there are also real risks that must be addressed by employers before making any major decisions, including the ones listed below.
Disability accommodations and vaccines
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees with a disability, unless the employer can demonstrate the accommodation would create an undue hardship. Reasonable accommodation may include appropriate adjustment or modifications of employer policies, including requirements imposed by a mandatory vaccination policy.
As with any request for an accommodation because of a disability, the employer should engage with the unvaccinated employee to identify potential workplace accommodations. The ADA creates an exception to employers’ obligations in the event of an undue hardship, which may include hardships associated with accommodation costs, finances of the organization, and impact of the accommodation on company operations, among other factors.
While we are just starting to see challenges to COVID-19 vaccine mandates, there have been rulings on other vaccine mandates in healthcare and government. Still, because the challenges of COVID-19 are so new, we are sure to see new cases and new precedents, and Practical Law continues to follow the issue closely.
Vaccines and religious accommodations
Employees may be entitled to another kind of reasonable accommodation in the mandatory vaccine context as well. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide accommodations for an employee’s sincerely held religious belief when it comes to vaccine requirements. Again, the law does account for exceptions related to the employer’s undue hardship.
The definition of undue hardship under Title VII is decidedly more lenient for the employer than under the ADA, requiring that it only pose more than a de minimis cost on business operations.
On the other hand, defining a “sincerely held religious belief” can be notoriously difficult, and courts have reached a wide range of conclusions on what is a sufficient religious belief under Title VII.
Vaccinations and medical questions under the ADA
Normally, the ADA largely bans disability-related inquiries from employers to their employees. However, the EEOC has specific vaccination guidance that states that requiring vaccination does not qualify as a medical exam. Employers with mandatory vaccination programs that are administering the COVID-19 vaccine to employees themselves or through an agent must use caution, though, as the EEOC also states that an employer’s use of pre-screening questions that ask whether the employee has been vaccinated may inadvertently constitute a disability-related inquiry. Employers must then be able to demonstrate the business necessity of these questions.
EEOC guidance also provides that information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. Therefore, employers must be careful not to violate the ADA’s confidentiality requirements when implementing workplace safety policies based on an employee’s vaccination status. Practical Law’s sample vaccination policies provide guidance to employers on how to navigate this issue.
Wage and hour vaccine considerations
Under federal law, employees may be entitled to compensable work time for their time spent waiting for and receiving a vaccine, if it is at the direction of the employer. Failure to adhere to wage and hour requirements is often a very expensive mistake, so it’s vital to get it right.
Additionally, providing paid leave to get vaccinated or recover from vaccine side effects is not only good practice (and strongly encouraged by OSHA) but may be required by state or local law. Practical Law provides comprehensive coverage of paid sick leave laws, including leave relating to COVID-19 vaccination.
Additional considerations regarding vaccines
Unionized employers may also have to consider collective bargaining agreements for any additional obligations owed to union members.
Also, employers that administer vaccinations to employees in the workplace, either themselves or through a third-party medical provider, should determine whether any alleged injuries sustained from the vaccination will trigger workers’ compensation insurance coverage. States are beginning to address this issue, and employer obligations may vary from state to state.
Can employers ban employees from the workplace if they refuse to get vaccinated?
Yes, according to updated EEOC guidance, but subject to reasonable accommodation obligations and as long as employers do not treat employees differently based on protected characteristics. Working with employees to address concerns regarding the vaccine and to ensure legal compliance is a better approach.
Do employers still need to require safety measures for fully vaccinated employees?
The CDC has issued guidance for fully vaccinated people, which it continues to update. The CDC’s guidance recognizes that employers may have their own workplace rules that may apply to fully vaccinated employees. OSHA’s COVID-19 guidance incorporates the CDC’s recommendations.
Employers must also continue to comply with state and local regulations concerning COVID-19 and public health, including mask mandates or other infection prevention and control measures.
Get the expert guidance you need to provide the expert guidance they need
While it can be daunting to keep up with guidance from public health agencies and new and existing state and local regulations, Practical Law does this for you. Let Practical Law’s over 300 full-time attorney-editors keep you updated on COVID-19 employment law and developments.
This post was based on a Practical Law Labor and Employment expert Q&A with Richard Warren of Miller, Canfield, Paddock, and Stone, PLC on what employers need to know about the 2019 novel coronavirus (COVID-19) vaccine and the workplace.