Finally, there is a light at the end of this tunnel. COVID-19 vaccines have been approved for use and are currently being shipped nationwide.
COVID-19 vaccinations are a polarizing topic. Well-regarded medical professionals report that the vaccines are between 94-95% effective, have minimal side effects (which do not include getting the virus) and represent our best chance at getting back to normal. Despite this, it is predicted that between 30 and 50% of Americans would decline to take a COVID-19 vaccine, even if free, based on concerns about side effects, the development process, and the effectiveness of the vaccine.
While it is still not clear when everyone will have access, it’s not too soon for employers to start planning. As the vaccines become available, employers have one simple question “Can we require our employees to get vaccinated?”
In true lawyer fashion, the answer is “yes, but…”
There are many legal considerations that must be taken into account when creating a vaccination policy. Employers considering adopting a mandatory vaccine policy are required under the Americans with Disability Act (ADA) and Title VII to include a method for employees to “opt-out” due to a disability or a sincerely held religious belief. Attempts to challenge the employee’s need to forego the vaccination due to a disability or sincerity of his/her religious belief can be problematic. The ADA has strict rules for medical examinations. Further, Title VII protects sincerely held religious beliefs held by an employee even if the employer does not agree with those beliefs.
If an employee requests to opt-out of the vaccine, the employer must engage in an interactive discussion to determine if there are other reasonable alternatives that can protect the employee and others from COVID-19. The answer to this question will be fact-specific and vary depending on the employee’s job function. When evaluating a request to not be vaccinated employers should consider:
- The services offered by the employer and to whom;
- The work performed by the employee;
- The location of that work;
- Whether there is a significant risk to the employee or others of contracting or spreading COVID-19;
- The reason given by the employee for seeking an exception;
- The nature and severity of the potential harm if the employee is not vaccinated;
- Whether other alternatives exist which would reduce the risk; and
- The number of employees requesting to opt-out of mandatory vaccinations.
For employers whose employees who work with COVID-19 patients or other vulnerable individuals (e.g., in a nursing home), the risk of infecting others may be so great that it would be an undue hardship to allow an exception under those circumstances. An employer who believes that waiving its vaccination requirement is an undue hardship and that there is no other reasonable accommodation needs to consider that decision and its potential exposure very carefully.
For employers whose employees telework or otherwise have limited interactions with customers and employees, there may be other reasonable alternatives which would adequately address a transmission risk, including the use of personal protective equipment (PPE), social distancing or telework.
In addition to the ADA and Title VII, other laws are implicated by vaccination policies. Employers with unionized workforces may need to collectively bargain before implementing mandatory vaccination policies. Further, time spent getting a vaccine could be compensable time under the Fair Labor Standards Act (FLSA) particularly if the employer mandates the vaccination. Additionally, under the National Labor Relations Act (NLRA), employers may not retaliate against employees who band together to refuse a vaccine (as opposed to simply refusing individually), or who speak with other employees regarding their good faith health concerns with vaccinations.
Even if an employer can legally impose mandatory vaccinations, an employer may want to first try adopting a voluntary vaccination program and leave open the possibility of making vaccinations mandatory later, particularly given that it is unknown when the vaccine may be available to all individuals.
Finally, according to recent EEOC guidelines, employers who decide to provide vaccines to their employees must be cautious that they (or the provider hired to administer the vaccine on their behalf) do not ask any questions prohibited by the ADA and GINA. For example, questions regarding family history could be impermissible. While a third party (like a pharmacy or other health care provider unaffiliated with the employer) could ask the same pre-screening questions, an employer or its agents cannot. The EEOC also recommends that the employer warn its employee not to provide any medical information when providing proof of vaccination to the employer.
Mandatory vaccination policies are definitely not a one-size fits all decision or a decision to be reached lightly. For better or worse, the decision will depend on the specific facts and circumstances in each situation.