Employer Vaccine Mandates

Tara K. Burke, Attorney for Jackson Lewis P.C.

Tara K. Burke is a Knowledge Management Attorney for Jackson Lewis P.C. a law firm focused on workplace law with offices in major cities nationwide.  Tara has been monitoring the employment law implications of COVID 19 since the outbreak of the pandemic.  She is a convention initiate of Pi Beta Phi.

To Vaccinate Or Not To Vaccinate . . . That is the Question

We start the new year with a renewed hope that the authorization of COVID-19 vaccines will help end the devastation caused by COVID-19. With the vaccines’ arrival however, also comes numerous complex ethical, practical and legal questions.   Fraternal organizations and other employers are struggling with whether they should requireemployees to be vaccinated for COVID-19 infection. For employers in all industries, there are many considerations that should be taken into account. 

Can Employers Mandate?

The first question many employers are asking is: Can they mandate vaccinations of their employees? The Equal Employment Opportunity Commission (EEOC) recently published guidancefor employers addressing the potential federal discrimination law limitations under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). The EEOC throws up a number of “caution flags” for employers dealing with vaccine issues in the workplace, especially for those considering mandating employee vaccination. The EEOC, however, does not identify any prohibition on employers mandating COVID-19 vaccinations under federal discrimination laws as long as certain obligations are met. The most significant obligation with any employer mandate, is the obligation to consider accommodations for employees with disabilities, pregnant employees, and employees with sincerely held religious beliefs that prevent the employee from receiving the vaccination.

The EEOC also explains that if a safety-based qualification standard, such as a vaccination requirement, “screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee will 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.’” Whether an unvaccinated employee will pose a direct threat in the workplace will require a critical analysis by every employer and careful consideration of the realities of their individual workplaces.

Fraternal organizations should also consider state and local laws. State and local anti-discrimination laws may be more stringent and courts and agencies interpreting these laws may reach conclusions that differ from the EEOC. Moreover, some states have legislation that directly impacts employer vaccine policies and a growing number of jurisdictions are considering legislation that would prohibit or limit employers from mandating employee vaccinations. For example, South Carolina S.B. 117, if passed, would prohibit an employer from terminating, or taking other adverse action, against an employee who chooses not to undergo COVID-19 vaccination. In Washington State, H.B. 1065 (pre-filed), if passed, would prevent any private entity from requiring receipt of the COVID-19 vaccine for any reason, including as a condition of employment if certain criteria have not been met including, among other things, if the vaccine has not been licensed for used by the FDA. Employers should assess and monitor closely local legislation and/or executive orders on this issue. 

If the employer’s employees are unionized, it needs to also consider whether the collective bargaining agreement allows it to mandate vaccines or whether it must bargain about the issue with the union.  Public sector employers, and private sector employers in jurisdictions such as California, must also consider whether mandating vaccinations raises additional privacy-related concerns.

Should Employers Mandate?

Even if an employer can mandate vaccinations, should it?  Organizations will inevitably answer this question in different ways and for different reasons. Among other things, employers likely will want to consider their work environment, whether their employees are in close contact with others who may not be able to vaccinate, the risk of harm to others if they don’t vaccinate, the culture in the environment and the disruption in the workplace if they mandate. Mandating vaccinations is a hot topic right now. Some individuals and organizations likely will be concerned with mandating vaccinations when the vaccine is new. Right now, both of the COVID-19 vaccines available in the US have been authorized by the FDA under Emergency Use Authorization (EUA) which is different than approval under FDA vaccine licensure. Mandating vaccination while the vaccine is under EUA may heighten the legal risk for employers.   

Employers should also consider the potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from vaccinations it mandates. Employers should first consider whether there is a need for the company to mandate the vaccination (as opposed to the state mandating vaccination).  A starting point may be to consider how the employer fared during the height of the pandemic when there was no vaccine. If the employer was able to reduce or eliminate the spread with other administrative controls, it may not need to incur the legal and operational risks that come with mandating vaccinations. Many employees, particularly those who are concerned, or at risk, will seek out the vaccine, regardless of any mandate, which raises the question: Do employers need to mandate, if employees (and others, such as students) can choose to get vaccinated to protect themselves? 

Can Employees Refuse?

Even if an employer mandates that its employees receive a vaccine, it can expect to receive push back from some of its employees. Some push back may be for political reasons, some may be out of fear, and some may be due to religious or medical concerns. Employees who collectively object to a term or condition of employment may have protection, at least for their objection, under the National Labor Relations Act. Employees who object for safety reasons may be protected under the Occupational Safety and Health Act and other state laws.  

As mentioned above, if employees object due to a disability/medical condition, pregnancy, or a sincerely held religious belief, employers will need to consider reasonable accommodations. First, consider if the employee can be accommodated in the workplace. As with other reasonable accommodation analyses under the ADA and Title VII, this should be conducted on a case-by-case basis. Employers should not exclude an employee from the workplace or take any other action unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk of substantial harm to the health or safety of the individual or others so that the unvaccinated employee does not pose a direct threat. Second, consider other accommodations including, remote work, reassignment to positions where accommodation may be possible to eliminate or reduce any direct threat or undue hardship, and leaves of absence under the organization’s policies or applicable law, including possibly the Family and Medical Leave Act and/or state and local leave laws.

What’s An Employer To Do?

This is potentially a divisive issue for employers. The distraction, dissension, and litigation risks posed by mandating may outweigh the potential benefits. As an alternative to mandates, employers may consider encouraging vaccination with a communication strategy focused on education and offering certain incentives such as ensuring that all costs associated with the vaccine are covered and perhaps providing additional time off work.[1]The CDC provides many helpful education resources on its website, such as Benefits of Getting a COVID-19 Vaccinethat explains the benefits of the vaccine and the role of vaccines in ending the pandemic. 

Employers who choose to offer, mandate, or provide incentives for vaccinations should consult with counsel. Stay tuned, as these are emerging and evolving legal issues. We expect to hear more at the state level as well as from the CDC, the EEOC and OSHA. 

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[1]Depending on how an incentive program is designed, there may be several regulatory considerations and compliance obligations