Employment Law Update

The COVID-19 Vaccine Quandary — To Mandate or Not to Mandate

As vaccines against COVID-19 become available, employers are asking whether they can mandate that employees be vaccinated. The short answer is “yes” — subject to the need to provide accommodations for employees with medical conditions under the Americans with Disabilities Act (ADA) and for employees with deeply held religious beliefs under Title VII of the Civil Rights Act of 1964 (Title VII).

Just as importantly, however, employers would do well also to ask whether they should require their employees to be vaccinated. Although there may not be a legal barrier to mandating vaccines, in most non-health care workplaces there are practical reasons — absent further federal, state or local government regulation or guidance — why an employer should start by encouraging and facilitating the taking of COVID-19 vaccinations rather than by requiring them.

Advantages to Voluntary Vaccination Programs

Many health care employers have historically mandated seasonal flu and other vaccines and are likely to mandate the COVID-19 vaccine for most employees given the risk of infection and spread in many health care workplaces. For non-health care employers, many of which are considering whether to institute a vaccine mandate for the first time, the decision is more complex.

There are reasons why at the start of the mass vaccination process, non-health care employers should favor a voluntary rather than mandatory approach.

First, the vaccine will go initially to health care workers and others at high risk for exposure to the disease. Sufficient doses of the vaccine may not be available for most employees for weeks or even months.

Second, use of the COVID-19 vaccine has not yet gained overwhelming acceptance by the public. Recent polls have revealed that many Americans wouldn’t take a vaccine even if the U.S. Food and Drug Administration (FDA) approved it. Mandating the taking of the COVID-19 vaccine, even after it is widely available, may cause dissent within the workforce and/or result in employees quitting. Employers should consider whether the need for many employees to be vaccinated now could be mitigated by such measures as remote working, appropriate social distancing and masking requirements. Employers should also keep in mind that activities among employees about a vaccine mandate, such as group discussions (in person or through social media), flyer distribution, informal meetings and other activities, are likely protected under the National Labor Relations Act, which prohibits retaliation against employees who engage in “concerted” protected activities.

Finally, the vaccines — at least initially — have only been approved by the FDA for distribution under an Emergency Use Authorization. Most observers, nevertheless, believe that any injury or illness that results from employer vaccination programs will be subject to most state workers’ compensation laws, except in cases of gross negligence or reckless conduct. Some employers may also have another layer of protection under the federal Public Readiness and Emergency Preparedness Act, which provides liability immunity to covered persons against claims of loss “caused by, arising out of, relating to, or resulting from” the administration or use of COVID-19 vaccines approved by FDA — except in cases of “willful misconduct.” Despite these likely sources of immunity, a mandated program may prompt legal claims and litigation from employees who suffer or believe they have suffered ill-effects from the vaccine.

ADA Accommodation Issues

Under the ADA, employees who have disability-related concerns about taking the vaccine may be entitled to decline vaccination as a reasonable accommodation unless it would cause the employer “undue hardship,” broadly defined as significant expense or difficulty. At the same time, employers may exclude employees who pose a “direct threat” to the health or safety of other individuals in the workplace; but determining whether a “direct threat” exists can be a complex assessment. A direct threat includes a determination that an unvaccinated individual will expose others to the virus at the work site.

If an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, an employer that decides to mandate vaccinations must conduct an individualized assessment of four factors in determining whether a direct threat exists:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

Even if an unvaccinated employee is found to pose a direct threat, the employer must also consider whether an accommodation, such as remote work or leave from work, would be appropriate. Employers should consult with legal counsel in working through the often complex accommodation process.

ADA Issues in Administering a Vaccine Program

The U.S. Equal Employment Opportunity Commission (EEOC) on December 16, 2020, updated its Technical Assistance Questions and Answers and provided additional guidance on how the ADA and Title VII affect employer programs to make COVID-19 vaccinations mandatory once the vaccine becomes available. The EEOC states that a vaccination by itself is not a “medical examination” subject to ADA requirements. Nevertheless, pre-vaccination medical screening questions may implicate the ADA’s provisions on disability-related inquiries because such questions may elicit information about a disability. Such questions might also violate the federal Genetic Information Nondiscrimination Act (GINA), which prohibits employers from asking questions that might elicit genetic information.

An employer that mandates the vaccine and chooses to administer vaccinations itself must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet that standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of herself, himself or others.

The EEOC further states that disability-related screening questions can be asked without needing to satisfy the job-related and consistent with business necessity requirement in two circumstances:

• When an employer offers vaccinations to employees on a voluntary basis (i.e. employees choose whether to be vaccinated). The ADA requires that the employee’s decision to answer pre-screening questions also must be voluntary. If an employee chooses not to respond, the employer may decline to administer the vaccine but may not retaliate against, intimidate or threaten the employee for refusing to answer any questions.
   
• When employees receive an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA job-related and consistent with business necessity restrictions on disability-related inquiries do not apply to the pre-vaccination medical screening questions.

In view of the EEOC’s guidance, employers may want to consider having a third party not under contract with the employer administer the vaccinations or require employees to obtain the vaccination themselves. Avoiding direct sponsorship of a vaccination program likely would permit employers to avoid sticky issues of compliance with the ADA and GINA, because employers would not be asking pre-vaccination screening questions that are regulated by the ADA and GINA.

Simply requesting proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry. However, employers must be cautious asking other questions, such why an employee did not receive a vaccination, because that may elicit disability-related information and would be subject to the pertinent ADA standard that the inquiry be job-related and consistent with business necessity.

Religious Accommodations

Employers may also need to provide an accommodation to employees who have a sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccination unless the accommodation would pose an undue hardship. An “undue hardship” exists under Title VII if an accommodation poses more than a de minimis cost or burden on the employer. While the EEOC ordinarily presumes that an employee’s request for religious accommodation is based on a sincerely held religious belief, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, it may request additional supporting information.

Next Steps for Non-Health Care Employers

Because of the current uncertainties, we recommend that non-health-care employers consider the following:

1. Take action now to formulate a voluntary vaccination program that would encourage and facilitate the taking of the COVID-19 vaccines by employees. For example, an employer should consider free on-site vaccinations, inclusion of vaccinations in wellness programs and incentives to employees for getting vaccinated.
    
2. Determine if any division or workplace would warrant imposition of a mandatory vaccination program, such as a plant where employees work in close proximity to each other or a division that supplies at-home or assisted-living and nursing home workers. In this way, a mandatory program could be limited to those employees who are most likely to be exposed to or expose others to the COVID-19 disease.
    
3. For those employees who will be subject to a vaccination requirement, prepare in advance to review and respond promptly to employee requests for “reasonable accommodation” based upon medical conditions under the ADA or religious beliefs under Title VII. Employers should review and, if necessary, update or create forms, whereby accommodation requests are submitted and considered in an expedited but thoughtful process, and should consider seeking legal counsel before denying requested accommodations.
    
4. Be alert to new regulations or guidance issued by federal, state and local governments that provide requirements or guidance for employers concerning COVID-19 vaccinations. These regulations and guidance may supplement or modify current requirements for mandatory vaccination programs. That will enable employers immediately to implement any such requirements in a way that does not disrupt operations and protects the health and safety of all employees.

If you have questions about instituting a vaccination program in your workplace, contact Charles R. Bacharach, Theodore P. Stein and James D. Handley.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

Theodore P. Stein
410-576-4229 • tstein@gfrlaw.com

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content.