Can Employers Require Employees to Get Vaccinated, and If So, Should They?

Jeffrey W. King Legal Counsel for the WFCA

LEGAL MATTERS

With the promise of expanded availability of COVID-19 vaccinations, there is hope that current restrictions will be eased by mid-year, and businesses can begin to fully reopen.

To ease customer’s concerns, flooring retailers and contractors may want to advertise that all of their employees and installers are vaccinated. This raises the question of whether an employer can mandate its employees and contractors be vaccinated and what to do if employees refuse to get the vaccine.

In making the decision whether or not to mandate vaccination, an employer must consider federal and state legal requirements, safety concerns, and the practical considerations of requiring its members to be vaccinated. As explained below, imposing a mandatory vaccination policy raises multiple and complex legal issues and may even be illegal under some state laws. Given these issues, employers should begin planning how they will deal with vaccination programs and whether to mandate vaccinations or simply encourage vaccinations under a voluntary program to avoid these potential issues.

Federal Requirements

Federal law does not prohibit mandatory vaccination programs. Rather, the law is concerned with ensuring such programs do not discriminate and protect the employee’s privacy. The primary laws that need to be considered are the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act, the religious and race accommodations under Title VII of the Civil Rights Act, the Occupational Safety and Health Act, Health Insurance Portability and Accountability Act, and the National Labor Relations Act.

The Americans with Disabilities Act (“ADA”)

The Equal Employment Opportunity Commission (“EEOC”) recently issued guidelines on mandating the COVID-19 vaccination. These guidelines have widely been interpreted as authorizing businesses to mandate their employees be vaccinated. EEOC guidelines, however, neither authorize nor prohibit a mandatory vaccination program. Rather, they only provide guidance on ensuring that mandatory vaccination programs comply with the ADA and other anti-discrimination laws.

The EEOC Guidance makes clear that employees may be entitled to exemptions from employer-mandated vaccination policies if they have a qualifying disability. According to the Center for Disease Control (“CDC”), anyone who had an immediate allergic reaction to any ingredient in either of the two available COVID-19 vaccines should not be vaccinated. A list of the ingredients of the vaccines can be identified at CDC Pre-Vaccination Checklist for COVID-19. The People with other allergies, like food or mold allergies, should be fine to get the COVID19 vaccine under the CDC guidance. Claims of other “disabilities” that preclude vaccinations would need to be individually evaluated. Caution needs to be exercised in probing whether the employee has a legitimate disability that precludes them from getting the COVID-19 vaccine.

In the case of an employee who declines to get vaccinated on the basis of disability, the employer cannot automatically terminate the unvaccinated employee. Rather, the employer must first determine whether the unvaccinated individual disability prevents them from doing their job. In the case of not being vaccinated, the issue would be whether the unvaccinated employee poses “a significant risk of substantial harm to the health and safety of the individual or others” in the workplace. In determining whether there is a significant threat, the employer needs to consider: (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. As applicable to COVID-19, is likely to be considered a significant risk if the employee who is unable to take the vaccine has close contact with other employees or customers.

If there is a risk, the ADA requires the employer provide reasonable accommodations to individuals with disabilities unless the reasonable accommodation creates an “undue hardship” on the employer. The courts have defined “undue hardship” as having more than a de minimis cost or burden on the employer. Reasonable accommodation regarding COVID-19 vaccination may be allowing the employee to work remotely from their home, partitioning the employee’s workspace, allowing them to work off hours to minimize contact with other employees or customers, or granting them a leave of absence until the threat of COVID-19 is minimized. Only if there are no reasonable accommodations can the employee be terminated.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act prohibits an employee from taking any negative employment action because of an employee’s pregnancy or related medical condition. As to whether pregnancy is a valid excuse to refuse the vaccination, there is not enough data on the safety of COVID-19 vaccines for pregnant women. Until such information is available, pregnant employees should be allowed to reject taking the vaccine and reasonable accommodations should be provided similar to those provided under the ADA.

Religious Accommodations

Similarly, employees can refuse to take the COVID -19 vaccine because of sincerely held religious practices or beliefs. It is illegal to discriminate against employees based on their religious beliefs under the Civil Rights Act. Accordingly, employers must undertake an analysis like done under the ADA to determine whether the unvaccinated employee poses a direct threat and, if so, whether it can offer reasonable accommodations.

The employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information, such as requesting a third-party from a religious officials or fellow church member.

Civil Rights Act

The Civil Rights Act also precludes discrimination against employees based on their race. Studies have indicated that some minority group members may be more reluctant to be vaccinated due to historical abuses during medical research. Mandating vaccination could create an environment for racial discrimination claims.

Health Insurance Portability and Accountability Act

Health Insurance Portability and Accountability Act (“HIPAA”) protects sensitive patient health information from being disclosed without the patient’s consent or knowledge. The ADA also protects health information regarding disabilities. Certain actions to combat COVID-19, like taking employees’ temperatures or asking if they have tested positive for COVID-19, are not considered sensitive health information under HIPAA or the ADA. Similarly, administration of a vaccination is not a medical examination under HIPAA. However, the pre-screening vaccination questions recommended by the CDC under the CDC Pre-Vaccination Checklist for COVID-19 is likely to be considered protected HIPAA and ADA health information.

Accordingly, if the employer administers the vaccine or hires a third party to administer the vaccine, it will need to ensure that it complies with the HIPAA and ADA requirements. Under HIPAA and the ADA, if employers keep medical information-including vaccination records-the information must be kept in a confidential medical file separate from the employee’s personnel file. In addition, employers should check state and local laws, which may require employers keep any vaccination records confidential in a certain manner or method or hold onto records for a certain period of time.

Occupational Safety and Health Act

Under the federal Occupational Safety and Health Act (“OSHA”) and many states’ laws, employers are obligated to provide a workplace free from serious recognized hazards. To comply with that requirement, employers have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity. However, the extent to which an employer can implement policies mandating that employees be vaccinated depend largely on the employer’s industry and location. For example, policies mandating vaccinations are more likely to be appropriate for employers in the healthcare industry and other environments where employees provide services to individuals who are at a high risk of having serious complications if they were to contract the flu. Accordingly, courts in a number of jurisdictions have held that these workers can be required to receive vaccinations, such as rubella or flu vaccinations, as long as the requirement is job-related and consistent with business necessity.

National Labor Relations Act

The National Labor Relations Act (“NLRA”), as applicable here, protects the rights of employees to unionize and to collectively bargain with employers. In 2012, it was held that the adoption of a new flu vaccine policy is a mandatory subject of bargaining. Accordingly, if the employees are unionized, any mandatory vaccination program must be approved by the union.

State Requirements

Many states are currently considering legislation regarding mandatory vaccines. Some prohibit an employer from mandating its employee be vaccinated, while others require all employees be vaccinated. Some will only apply to certain employees, such as healthcare providers and state government employees, while others will apply to all employees. In New York, for example, there is a pending bill that bans mandatory vaccinations and another bill that mandates all employers institute a mandatory vaccination program. States are likely to continue to consider proposed legislation, and employers should check to make sure they are complying with the state that could either require or ban a mandatory vaccination program.

Safety Concerns with Vaccine

The current COVID- 19 vaccines are receiving approval by the Food and Drug Administration (“FDA”) under “Emergency Use Authorizations” (EUAs). An EUA would allow vaccines to be used before full FDA approval. It is unclear whether an employer can mandate a vaccine that is approved as under EUA. By the time a COVID-19 vaccine will be broadly available to most employees, the vaccines could have “full” FDA approval. If it does not, employers may not want to mandate employees take the vaccine.

Practical Considerations

Assuming employers can mandate vaccines, the issue is whether employers should do so. The question arises of what to do if an employee without a disability. pregnancy or religious belief refused to be vaccinated. Will they be terminated? What if a significant portion of the employees refuse to comply—will all of them be terminated? The business must also consider the impact of mandating vaccinations on the moral of employees. It makes little sense to mandate employees be vaccinated unless the business is prepared to enforce the program.

In addition, employers should consider the logistical issues, such as who pays for the vaccination, how are the records verifying vaccination are stored, are the employees paid for the time spent getting the vaccination, and will the employee be paid if they are unable to work due to side effects. Before implementing any mandatory vaccination program, employers need to answer these questions and prepare for such a mandate.

Voluntary Program

Many employers are leaning toward encouraging, rather than mandating, vaccines. The employer can ask for proof of vaccination and allow employees to obtain the vaccine through their chosen health care provider. The employer can offer incentives but needs to be careful not to discriminate against employees who decline the vaccine because of a disability, religious beliefs, or pregnancy. For example, if cash or extra paid days off are offered to those who voluntarily get vaccinated, these incentives should also be offered to those unable to take the vaccine because of a disability, religious beliefs, or pregnancy.

Conclusion

The decision whether to mandate vaccines is months away for most employers. The law in this area will develop further in the interim. Employers should monitor and consider the issues as discussed above, and begin planning to implement the vaccine policy it decides to use.

Given the complexity of the issues raised, it is recommended that competent legal counsel be consulted before implementing any vaccination program. ❚

The information contained in this article is abridged from legislation, court decisions, and administrative rulings, should not be construed as legal advice or opinion and is not a substitute for the advice of counsel.