Updated December 16, 2020
The U.S. Food and Drug Administration (FDA) recently approved Pfizer’s COVID-19 vaccine for use in the United States under an Emergency Use Authorization (EUA), and EUA approval of the Moderna vaccine is expected to occur by the end of this week. Now, the question for employers is whether they can require employees to be vaccinated as a condition of employment. At long last, on December 16, 2020,the EEOC issued guidance directly relating to the COVID-19 vaccine, and it’s official: employers CAN implement mandatory vaccination policies. [1]
A widely vaccinated population arguably will assist businesses get “back to work”, and may kick-start the economy in sectors hard hit by the virus. On a smaller scale, mandatory vaccination policies can help employers create a safe and healthy workplace, as required by the Occupational Safety and Health Administration (OSHA). Such a policy may also result in fewer employee absences due to COVID infection, reduced expenses and downtime attributable to office closures for COVID deep cleaning, and serve to instill confidence in employees who are returning to the workplace after a long period of telework. Some businesses and firms are even planning to use mandatory vaccination policies as marketing, i.e., “it is safer to work/shop/eat here, because all our employees are vaccinated!”
Following the Rules
Now that we know employers can implement these policies, what rules must they follow to do so? (Or, skip to the bottom to see our 11 Tips!)
Under Title VII of the Civil Rights Act of 1964, employers must provide employees who have a sincerely held religious belief that prevents them from taking the vaccination with a reasonable accommodation, so long as the accommodation does not pose an undue hardship on the employer. Under Title VII, undue hardship is anything more than a deminimis cost. Title VII is expansive, covering beliefs, practices, and observances with which employers may not be familiar. For this reason, employers should assume that an employees’ claimed religious belief is genuine.
Under the ADA, employers may have certain “qualification standards” for each applicant to be qualified to perform a job, so long as the qualification standard is job related, and consistent with business necessity. [2] The ADA allows employers to include as a qualification standard that employees “not pose a direct threat to the health safety of individuals in the workplace.” If the safety-based standard tends to screen out individuals with disabilities, the employer must show that an unvaccinated employee poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” [3]
Determining Whether an ADA Direct Threat Exists
In order to determine if the employee poses a direct threat, employers must conclude that an unvaccinated individual will expose others to the virus at the worksite. An individualized assessment of the employee must be conducted, using the following four factors:
(1) Duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur;
(4) The imminence of the potential harm.
Under this analysis, if all employees at a non-public facing worksite were able to take the vaccine but one, the unvaccinated employee would likely not pose a “direct threat” to others at the worksite. This is because, theoretically, the vaccinated individuals are protected by their own vaccinations against the harm that the unvaccinated employee could potentially bring to the worksite. Since the COVID-19 vaccinations are still new, and have been issued under an EUA with debatable efficacy rates (the efficacy standard for EUA vaccines is “may be effective”, as opposed to the unqualified “effective” standard for vaccines with full FDA approval [4][5]),the analysis may not be this cut and dry until full FDA approval is obtained.
How to Handle a “Direct Threat”
If an unvaccinated employee poses a direct threat (or if the employer is unsure if there is a direct threat), an employer cannot exclude the employee from the worksite. Instead, a “reasonable accommodation” should be provided, if possible. Like under Title VII, an employer is not required to make a reasonable accommodation if it would cause them “undue hardship”. Note, however, that the standard for undue hardship under the ADA is higher than under Title VII, and requires employers demonstrate that the reasonable accommodation would come at significant difficulty or expense to the employer. Such reasonable accommodations may include working remotely, seating employees away from other employees, or any number of accommodations to limit direct contact with the unvaccinated employee.
Termination is the last option, and employers should review any proposed terminations with their attorney prior to taking this step.
Tips for creating and implementing your workplace’s mandatory vaccination policy.
As always, before implementation of any new policy, employers should review proposed policies with their attorneys to avoid potential liability. Here are some tips to get you started:
- Know your workplace. Workplaces that benefit the most from mandatory vaccination policies are those where work cannot be performed remotely, where employees are customer facing (i.e., retail, restaurants), and where employees interact with vulnerable populations(i.e., hospitals and senior care facilities). If you can space your employees apart from one another, if employees can perform work in the open air, or can or do work remotely, consider whether a more conservative approach is right for your business.
- Plan ahead. There is no doubt that requiring vaccinations will be unpopular for some employees. Employers should be prepared for the reality that they may lose workers who are unwilling to take the vaccine. Loss of employees can result in business slowdowns and the risk of bad press or a damaged reputation. Plan ahead for the need to hire, and consult your attorney to help with messaging. You may also consider waiting to roll out mandatory vaccination policies. As vaccines graduate from EUA to full FDA approval status, their efficacy rates and the nature of side effects will be more known, and public perception of the vaccines may soften, mitigating negative feedback by trepidatious employees.
- Ensure workplace safety, even if you do not impose a mandatory vaccination policy. Employers who choose not to implement a vaccination policy should be mindful of potential tort liability for their failure to provide a safe and healthy work environment, as required by OSHA. Though there is no legal precedent creating employer liability for not requiring vaccinations, even an unsuccessful claim may expose employers to costly litigation. Employers can mitigate some of this risk by ensuring adherence to all proper COVID-19 protocols (including sanitizing communal spaces, spacing employees apart from one another, requiring the use of masks, and supplying hand sanitizer). Consult your attorney for area-specific COVID-19 protocols.
- Be mindful of vaccine availability. Employers should be mindful of availability and cost of the vaccine, and ensure that every employee required to get the vaccine has access to it. Employers may consider offering on-site vaccinations to ensure access and availability, and proving a window within which employees are required to get the vaccine (e.g., within 60 days of the policy becoming effective). On December 16, 2020, New York’s Governor, Andrew Cuomo announced that all New Yorkers will be provided the vaccine at NO cost, regardless of insurance status. The Governor, through the Department of Financial Services, has directed insurance companies to pickup all costs associated with vaccine provision.
- Know which employees are exempt from the policy. As described above, those employees that have a disability or sincerely held religious belief that prevent them from taking the vaccine should be exempted from the policy if a reasonable accommodation can be made.
- Know what you can request from employees to prove exemption from the policy. Employees who specifically ask for an accommodation based on a limitation or disability can be required to provide the nature of that limitation or disability, and the effect that the vaccination would cause. The employee also may be required to provide a doctor’s note to confirm the employee’s disability and need for accommodation. For those seeking a Title VII religious accommodation, employers should assume, generally, that the religious belief is sincerely held. However, if employers have an “objective basis” to question the sincerity of an employee’s religious belief, supporting information (such as a letter from a religious leader, an employee’s own first-hand explanation, or third-party verification from the employee’s friends or contacts, whether or not they are engaged in the employee’s religion) may be requested.
- Properly train those responsible for overseeing the policy. Managers and supervisors responsible for overseeing employee compliance should be able to recognize requests for accommodations, and should know how to handle these requests, or be prepared to timely escalate them to the proper parties. Likewise, you should advise policy administrators that it is unlawful to disclose that employees are receiving reasonable accommodations, and to retaliate against any employee for making a request for an accommodation (regardless of whether there quest is approved).
- Fully engage in interactive processes to identify reasonable accommodation options. Employers should consider whether additional information would help them create an appropriate reasonable accommodation. If employers are considering work from home to be a reasonable accommodation for some employees with ADA or Title VII exemptions, but not for others, the employer should establish a set policy by which employees are eligible to work from home (i.e., employees who meet certain clearly enumerated productivity metrics, or employees who hold certain job titles). As with any other workplace policies, employees who are similarly situated should be treated the same.
- Be consistent. Employers must be sure not to exempt employees from any mandatory vaccination policy on a case-by-case basis (for instance, supervisors cannot allow employees who are apprehensive about taking the vaccine, without a valid exemption from the requirement, to forego getting vaccinated).
- Reconsider financial incentives. In lieu of a mandatory vaccination policy, some employers are considering employee bonuses and other incentives for those employees who get the vaccine. These types of incentives cause employers to treat employees differently based on metrics that are not work or productivity related, and may be exclusive of employees who opt out of vaccinations because of an exemption. For these reasons, you should review specific financial incentive plans with your attorney prior to implementation.
- Know what employer protections are available. Private employers who implement requirements to use covered countermeasures (such as vaccines) to treat, cure, prevent or mitigate COVID-19 may be considered “program planners”/”covered persons” under the Public Readiness and Emergency Preparedness Act (PREP Act). The PREP act immunizes covered persons against any claim of loss caused by, arising out of, relating to, or resulting from the use of covered countermeasures. This and other available protections may be available to employers, and should be discussed with your attorney.
Conclusion
In addition to worksite-specific guidance, employers should be mindful of state and local vaccination legislation and directives, which may moot the need for specific workplace policies. For example, on December 4, 2020, New York State Assemblywoman Linda Rosenthal introduced assembly bill A11179, which empowers Public Health Officials to mandate the vaccination of “all individuals or groups of individuals who, as shown by clinical data, are proven to be safe to receive a COVID-19 vaccine”(subject to medical exemptions). [6] Though this bill is not yet law, it is demonstrative of lawmakers’ willingness to entertain mandatory vaccination laws and policies for the population at large. We will provide additional information on this bill as it becomes available.
Whether or not employers decide to implement a mandatory vaccination policy, employers should stay diligent about ensuring a safe workplace. With EEOC guidance now available, employers should feel empowered to implement policies if it would further their business goals, and should review those policies with their attorneys to ensure compliance with all applicable laws.
If you have questions concerning this topic or would like to discuss in further detail, please contact the authors, Meghan DiPasquale or Katerina Kramarchyk.