Since December 11, 2020, the U.S. Food & Drug Administration has authorized the emergency use of three COVID-19 vaccines. As of June 21, 2021, the Centers for Disease Control and Prevention estimated that more than 177.3 million people had received at least one dose of a COVID-19 vaccine and 150 million of those people were fully vaccinated. But where does that leave employers? Can they mandate the vaccine for employees? Should they?
EEOC Guidance on Mandating Vaccinations
On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its technical COVID-19 guidance, titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” regarding COVID-19 vaccination programs. The updated guidance is consistent with the agency’s historic approach to mandatory vaccine programs, including guidance issued during the H1N1 (“swine flu”) pandemic in 2009.
The main takeaway is that the EEOC generally considers mandatory vaccination programs lawful, subject to exemptions for disabilities and sincerely held religious beliefs.
Exemptions. Employers that implement a mandatory COVID-19 vaccination program must still provide exemptions for two categories of workers: (1) individuals with a disability that prevents them from safely getting the vaccine (this may include individuals with allergies, fevers, bleeding disorders, and those that are pregnant or immunocompromised); and (2) individuals with a sincerely held religious belief inconsistent with getting the vaccine. These protections arise under the Americans with Disabilities Act (ADA) and Title VII, respectively.
If an individual cannot be vaccinated due to a disability, then the employer must determine if that unvaccinated person poses a “direct threat” to the health and safety of himself or others. If the individual does pose a direct threat, then the employer must determine whether any reasonable accommodation would eliminate that threat.
Employers who decide to mandate COVID-19 vaccination in the workplace must treat any request for a reasonable accommodation on a case-by-case basis, and engage employees in a flexible, interactive process to identify workplace accommodation options that do not constitute an “undue hardship” (i.e., a significant difficulty or expense under the ADA, and a more than de minimis cost/burden on the employer under Title VII). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability or religious convictions and considering the possible options for accommodation given the nature of the workforce and the employee’s position.
A few things to consider during this process are:
- If the request is medical, has the employee adequately documented a disability?
- If the request is religious, are the beliefs religious, or simply moral/scientific?
- Is there any other available reasonable accommodation (e.g., transfer, social distancing, additional PPE, etc.) that would allow the employee to do his or her job without the vaccine and without exposing others to possible infection?
The bottom line is that an employer must provide a reasonable accommodation to an individual that is unable to get the vaccine due to a disability or religious belief, so long as the employer would not suffer undue hardship in providing such accommodation. This determination is fact-specific and must be made on a case-by-case basis.
FDA Emergency Use Authorization (EUA) Versus Approval. One note with respect to this analysis is that the only three vaccines currently available in the United States for COVID-19 were authorized by the FDA under a special Emergency Use Authorization designation. This is different than a non-emergency approval process (e.g., a New Drug Application) in that, for example, the currently available vaccine necessarily lacks long-term safety data.
None of the documents issued by the FDA in its approval of the vaccines provide that the vaccines may be mandated. On the contrary, the approval letters and fact sheets issued by the FDA provide that recipients of the vaccine must be instructed that it is their choice to receive the COVID-19 vaccine. The recent guidance from the EEOC indicates that the emergency nature of this designation does not affect how the agency views mandatory vaccination programs. However, the EEOC is also quick to include the caveat that, “[i]t is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.” Ultimately, this is a developing legal issue, so it remains important for employers to consider the emergency nature of the current vaccine in evaluating their options.
Legal Challenges
Some employees have already filed lawsuits challenging mandatory COVID-19 vaccination policies in the workplace. Lawsuits have been filed, for example, against a Texas hospital, a Los Angeles school district, a North Carolina sheriff, and a New Mexico detention center. Much of the opposition to mandatory vaccination programs emphasizes that the vaccines have only been approved on an emergency basis and should therefore not be forced upon employees. The employees’ arguments, however, do not so far appear to be gaining traction in the courts.
Most recently, on June 12, 2021, Judge Lynn Hughes for the United States District Court for the Southern District of Texas dismissed a lawsuit filed against the Houston Methodist Hospital, saying, “This is not coercion…It is a choice made to keep staff, patients, and their families safer. [Plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” He also noted that the plaintiffs’ claim that the COVID-19 vaccines are “experimental and dangerous” is both “false” and “irrelevant.”
Considering the Options
Because of the unique challenges presented by COVID-19, the legal landscape on these issues is novel and rapidly changing. It is important for employers to evaluate the potential risks and benefits to their unique operations in developing their individualized approach to the COVID-19 vaccine. Employers should consider, for example:
- Is my industry recommending vaccination? What is the latest guidance from the CDC, OSHA, EEOC, and other authorities on these issues?
- What are the risks of not requiring employees to be vaccinated?
- Can that risk be limited by a means other than mandatory vaccination (e.g., social distancing, PPE, etc.)?
- In lieu of a mandatory vaccine program, what sort of education and campaigning can be implemented to encourage voluntary vaccination?
- In lieu of a mandatory vaccine program, what sort of incentives might the employer offer to employees to voluntarily provide documentation or other confirmation of vaccination? The EEOC guidance provides that federal EEO laws do not prevent or limit employers from offering such incentives.
- If a mandatory vaccine program is necessary, can it be limited to employees performing certain tasks or working with certain high-risk populations?
- If an employee is injured by a vaccine that has been mandated by the employer, would that be a worker’s compensation claim or another type of civil claim?
- How will the employer respond to individuals that choose not to be vaccinated? Especially if the employer has a mandatory vaccination program, this is a critical consideration, since operations will likely be disrupted if a large percentage of the workforce refuse the vaccine.
- How will the employer handle requests for exemptions to the vaccine based on employees’ religious beliefs or disabilities?
If an employer chooses not to mandate the vaccine, but highly recommend it instead, the employer can provide employees and their family members with educational materials, as well as consistent and repeated messaging around the reasons why the employer is recommending the vaccine.
Employers should also consider whether they will require proof of vaccination under their COVID-19 vaccination programs. According to the EEOC’s guidance, an employer may require proof that an employee has received the COVID-19 vaccine. If employers choose to obtain vaccination information from employees, employers must keep that information confidential. In addition, to avoid implicating the ADA, employers should warn employees not to provide medical information as part of that proof. Employers should also be careful when asking follow-up questions about why, for example, an employee did not receive a vaccination, as those subsequent inquiries trigger the ADA and must be “job-related and consistent with business necessity.”
Administering a COVID-19 Vaccine
Employers that administer a COVID-19 vaccine directly to their employees, or enter into a contract with a third-party to have the third-party administer the vaccine, should read the EEOC’s guidance regarding pre-screening questions.
In making decisions about a vaccine program, employers should also be aware of any state laws that may apply to them. Some states, for example, require vaccinations for health care employees, while other states bar vaccination mandates for employees altogether.