The good news that COVID-19 vaccinations have begun to be deployed has led to new decision points for employers: once their employees become eligible for the vaccine, should employers mandate that their workers receive the vaccine? Similar questions arise with opening premises and events to customers, conference attendees and other visitors. While requiring proof of vaccination may at first blush seem like a responsible measure, legal and practical considerations militate against an across-the-board vaccination mandate for most organizations.
The U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on December 16, 2020, to address questions about the COVID-19 vaccine. The Guidance clarifies that employers can mandate that employees receive the vaccination as a condition of working onsite, provided that, if an employee does not comply, the employer engages in an individualized analysis of whether an exception to that policy is needed to provide a required reasonable accommodation due to a disability (under the Americans with Disabilities Act (ADA)) or a sincerely held religious objection (under Title VII). Employers must also respect the rights of any pregnant employees who are reluctant to take the vaccine, given the current limited data about the safety of COVID-19 vaccines during pregnancy.
The EEOC Guidance also states that it is lawful for an employer to request proof of vaccination, despite the ADA’s restrictions on disability-related inquiries, as “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability.” The Guidance cautions, however, that “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’” Similarly, administering vaccinations involves asking pre-screening questions which, if asked by the employer, constitute restricted disability-related inquiries under the ADA. Employers can avoid those ADA compliance issues by sending employees elsewhere to obtain a vaccination so that the employer is walled off from that information.
If an employer mandates COVID-19 vaccinations, and an employee declines for a protected reason, such as a disability, the Guidance requires that the employer determine whether an unvaccinated employee poses a direct threat to others, and what accommodations are available to reduce or eliminate the threat. Employers cannot terminate employees who have disability-related reasons not to get vaccinated unless the direct threat cannot be reduced to an acceptable level (e.g., through a teleworking arrangement) and no other legal protection applies to the employee (e.g., FMLA leave).
Despite the EEOC’s guidance that employers may permissibly, with certain safeguards and exceptions, require that employees obtain the COVID-19 vaccine for onsite work, adopting a vaccine mandate for employees still carries legal and practical risks, for several reasons.
First, as of the date of this alert, the available vaccines in the U.S. have only Emergency Use Authorization (EUA), not FDA licensure (unlike, for example, the flu vaccine). The EEOC’s recently issued vaccine-related guidance addresses that in part. The EEOC guidance explains that some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:
[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.
The requirement that recipients be informed that they may refuse the vaccine may open the door to claims against employers that take adverse employment action against employees who exercise their EUA right to refuse the emergency use vaccine. One key legal concern is whether an aggrieved employee could claim that refusing the vaccine is legally protected activity and bring a lawsuit for discharge in violation of public policy, given the public policy in the Emergency Use Authorization law that any emergency use of the vaccine be based on a voluntary choice of the recipient.
Second, as noted above, exceptions do have to be made under the ADA for individuals with disabilities who may face complications from the vaccine, those with religious beliefs against vaccination, or pregnant women concerned about the effect of the vaccine on fetal development. An employer mandate for the vaccine places the employer in the position of inquiring about an employee’s reasons for declining the vaccine and assessing the adequacy of those reasons. Pregnant employees often prefer not to disclose their pregnancy to employers until well along in the pregnancy; employees with non-obvious disabilities or genetic histories that place them at risk also may prefer not to disclose that information. Employers may also prefer not to learn this information about an employee, as, if the employer is unaware that an employee is in a protected class, the employee cannot easily challenge an adverse employment action as discriminatory.
Third, while the vaccine provides significant protection from serious complications of COVID-19 to the recipient of the vaccine, there is not yet data showing whether vaccinated individuals can transmit the virus to others, just as asymptomatic individuals infected with the virus appear to do. Without findings supporting that the vaccine in fact protects others rather than only the vaccine recipient, employers would still need to maintain all of the COVID-19 precautionary measures. The threat of COVID-19 to an employee’s own health is still a lawful reason to encourage or even require employee vaccinations, but employers should not regard employee vaccination as an escape from the current pandemic restrictions employers must have in place under OSHA, CDC and local public health agency safety standards for workplaces.
Fourth, for some positions, employers may not be able to make a showing that unvaccinated employees pose a direct threat that cannot be addressed through other means. For example, if the workplace configuration provides ample distance between employees and customers, excellent ventilation, is in compliance with applicable CDC, local public health agency, and OSHA guidance about preventive measures, and there is no record of workplace outbreaks during the pandemic, an employer could have difficulty establishing that an unvaccinated employee poses a direct threat. Businesses that employ frontline essential workers, on the other hand, may more easily be able to establish that the direct threat of an unvaccinated worker cannot be reduced to acceptable levels.
Finally, as a practical matter, a mandatory policy puts employers in the difficult position of deciding what to do about employees who refuse to obtain the vaccine. Reports of polls in December 2020 reflect that between 27 percent and 40 percent of Americans indicated they would decline to be vaccinated. A mandatory requirement may persuade some of the currently reluctant employees to obtain the vaccine, but others will still refuse because of their concerns. For some employers, terminating that large a percentage of their workforce for noncompliance is not feasible, and, in any case, would be an unwelcome prospect.
As a result of these considerations, many employers plan to encourage and incentivize employees to obtain the vaccine when it is available, rather than mandating it. As fatigue with COVID-19 safety measures increases, and employees tire of mask mandates and social distancing, employers may wish to consider counter-measures to promote higher rates of vaccination. Incentives could include paid leave to obtain the vaccine and for related time off, such as if the employee experiences side effects from the vaccine. Under EEOC regulations, employers may even offer employees financial incentives for voluntary participation in wellness programs.
Considerations for Public Accommodations
The EEOC Guidance focuses only on the employment relationship. Companies that provide services to the public, trade associations that hold conferences and other events, and venues that qualify as public accommodations are also confronting decisions about whether to require proof of vaccination before permitting non-employees to enter their premises or attend their in-person events. Although the EEOC Guidance addressed Title I of the ADA, which applies to the employment relationship, Title III of the ADA, which applies to places of public accommodation, contains a different provision regarding nondiscrimination on the basis of disability. Under that Title of the ADA, it is unlawful to discriminate against any individual on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Public accommodations also must not, on the basis of disability, “deny any individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation…. [or] that is not equal to that afforded to other individuals.” As is the case in the employment context, there is an exception “when that individual poses a direct threat to the health or safety of others.”
If public accommodations follow an approach similar to that in the EEOC Guidance, they may consider adopting policies requiring proof of vaccination from attendees at in-person events or from customers who come on-site – however, in most cases, they would also need to provide comparable offerings in a virtual or no-contact setting to those who, due to a disability, cannot meet the vaccination requirement for in-person attendance. Whether those policies are defensible may depend on findings about whether those vaccinated against COVID-19 in fact pose less of a direct threat of transmitting the virus to others.
At this point – except in certain industries – adoption or enforcement of mandatory vaccination policies is a matter for future planning only, as the vaccine is not yet available to most of the U.S. population. Careful consideration of the legal risks and practical ramifications of adopting a vaccine policy is critical, and organizations would be prudent to consult with legal counsel before adopting a vaccine policy.