In addition to COVID-19’s deadly impact on our population, it has also hit many businesses hard. Not only have there been customer declines and governmental shut-down orders, but employers have had to manage through a myriad of COVID-related employee absences. Fortunately, hope may be on the horizon, as the U.S. Federal Drug Administration (FDA) is approving vaccines for wide distribution. However, with hope comes challenge, as businesses now need to decide whether and how they will make employee vaccinations part of their COVID response planning.
In this article, we’ll focus on whether vaccinations can be made mandatory, the legal considerations that impact mandatory vaccinations and the factors you should take into consideration as you develop your vaccination strategy.
The short answer is yes, as the Equal Employment Opportunity Commission (EEOC) confirmed on December 16, 2020 that employers can mandate a COVID-19 vaccination as a condition of employment. The EEOC has taken the position that a mandatory vaccination is neither a medical exam nor a disability-related inquiry under the Americans with Disabilities Act (ADA). Instead, it is an employer policy that can be applied to all employees subject to reasonable accommodations for those who cannot comply due to a disability or sincerely held religious beliefs or practices (see USI’s Compliance Update for more information).
However, if the employer administers the vaccine (including through an on-site clinic or vendor), it will trigger the ADA because the pre-screening questions are likely to elicit information about an employee’s disability. Employers should be prepared to show such inquiries are “job-related and consistent with business necessity,” such as promoting the safety and health of the workplace.
*Note: See limitations due to the FDA’s Emergency Use Authorization here.
Employers should anticipate that employees will make objections to mandates to vaccinate. Although there may be some limited state law exceptions, employees generally don’t have any legal rights to refuse vaccinations based on ethical objections, civil rights concerns, or just plain fear. They might, however, have a right to an accommodation due to disability or religious considerations, unless it presents an “undue hardship” to the employer.
Employees who cannot be vaccinated due to a disability under the ADA may be entitled to an accommodation. If a medical objection is made, you should initiate the interactive process, which starts with identifying the employee’s medical condition, determining whether it rises to the level of a disability under the ADA, and understanding why it impacts or prevents the employee from being vaccinated. We recommend providing the employee with an ADA-specific form for their medical provider to complete (clients with access may contact the Hotline for a template form with instructions, as well as an ADA interactive process flowchart).
While there may not be a lot of disabilities that would prevent vaccination (just being allergic to something in a vaccine is unlikely in most cases to be a disability under the law), if the employee provides sufficient documentation demonstrating that a qualifying disability prevents them from being vaccinated, the next step is determining whether there is a reasonable accommodation available. To be reasonable, the accommodation will have to enable the employer to address its safety concerns while meeting the employee’s medical needs. Examples of possible accommodations include job restructuring, extended leave, modified schedule with fewer workers, masking and social distancing, modified workplace policies, reassignment, etc. The employee does not get their preferred accommodation if the employer can find an alternative reasonable accommodation.
For some positions, such as those in nursing homes providing direct care to vulnerable populations, or those in hospitals working with patients, accommodations may not be possible. For others, such as office staff at a manufacturing company, or employees who work outdoors, alternatives may have to be considered. In determining what’s reasonable, you should take into consideration what you’ve been doing up to this point (e.g., masking, distancing, cleansing, etc.) and whether it has been effective at preventing outbreaks.
Each employee objection must be considered on a case-by-case basis. Although employers may deny an accommodation based on undue hardship, the ADA prohibits blanket rules and dislikes inflexibility. Employers will have to have consistent application of exceptions or accommodations in order to reduce the risk of discrimination claims.
Accommodations may also have to be considered for employees with sincerely held religious objections to vaccinations. According to the EEOC, “religion” includes not only traditional, organized religions, but also religious beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” However, social, political, or economic philosophies, or personal preferences, are not "religious" beliefs under federal law.
If a religious objection is made, employers should be prepared to request further documentation from the employee to substantiate. The employer is permitted to ask some deeply personal questions to determine why the belief or practice impacts the employee’s ability to be vaccinated. For example, employers are permitted to ask employees if they have received other vaccinations and if so, why having the COVID-19 vaccination conflicts with their religious beliefs.
Like the ADA, Title VII of the Civil Rights Act obligates employers to determine whether reasonable accommodations exist that would enable the employee’s religious needs to be met. However, unlike the ADA, the bar is much lower for rejecting religious accommodation requests, since anything that imposes “more than de minimis cost” to the operation of the employer’s business would be considered an undue hardship, and thus unreasonable. In the context of COVID, unvaccinated employees are more likely to get infected, and if they do so, they are likely to incur treatment and other costs that would have to be paid by either the employer’s health or work comp insurance. As a result, it may be easier to deny religious accommodation requests than disability accommodation requests, but if there is a way to meet the employee’s religious needs, that’s always best.
To ensure consistency and avoid claims of discrimination, we recommend providing the employee with a form to complete. Clients with access can contact the Hotline for a template form.
Knowing that you can mandate vaccinations, the question becomes whether you should. The answer is likely to vary from employer to employer and may also vary from position to position. For example, it may make sense to mandate vaccinations for some of parts of the workforce (e.g., those with close contacts with vulnerable adults), but not the rest of the workforce (e.g., office staff).
If you decide to mandate
If you are making vaccinations mandatory, then there needs to be consequences (e.g., discipline, suspension, termination, etc.) for those who refuse to be vaccinated for personal reasons not related to a disability, religious belief or objections allowed under state law. Such a decision may be easy for an employee with a bad attitude or who is a poor performer, but will be much more difficult when it comes to superstar employees. However, consistency is important.
Employee morale should not be ignored. Not mandating vaccinations may be seen as dangerous or irresponsible by some employees, while mandating vaccines will be upsetting to any employees with personal objections. As a result, it is important to ensure that the approach you take is objectively supportable, consistent with your culture, and communicated effectively to all those who are impacted.
And don’t forget the administrative considerations that go along with mandatory vaccinations, such as monitoring tracking compliance, maintaining records, etc.
If you decide to encourage or incentivize
Employers who choose not to mandate vaccinations can strongly encourage or incentivize employees to get vaccinated. Incentives can include such things as offering to pay for all costs, providing paid time off to receive the vaccine, or bringing medical personnel onsite to administer the vaccine (much like many employers already do with flu shots).
If you decide to take no position
Employers can choose to take no position regarding vaccinations. However, if you take such an approach, be prepared to answer questions from employees such as:
Regardless of your approach to vaccinations, state and local safety mandates on business operations, face coverings, and social distancing will still apply. These safety practices remain important even as vaccinations are rolled out, since until a sufficient percentage of the population gets vaccinated, the risk of transmission remains high. This is a new “normal” and you should continue to maintain safe, clean, and distanced work environments during the state of emergency.
Employers should keep in mind that much around the COVID-19 vaccine is subject to change, including access, administration, even dosages. Employers should be flexible and ready to pivot if the circumstances or regulations require. As you come up with your strategy, be sure to check out the following USI resources:
And if you’re a Hotline client, be sure to reach out to the Compliance and Workplace Solutions team for additional guidance.
Heather offers practical guidance and helps employers find solutions to employment law and compliance matters.
Heather educates and advises employers on all aspects of employment law, including compliance with state and federal laws, leaves of absence, discrimination, harassment, accommodations, discipline and discharge, wage and hour obligations, unfair competition, and other issues that arise in the workplace. In addition to Heather’s employment counseling, her background includes nearly a decade of litigation experience. Her prior experience includes litigating for a regional insurance company, business disputes, and employment.
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