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Can, and Should, Employers Mandate COVID-19 Vaccines?

A future of large communal events, carefree indoor dining, and a return to schools in-person is an enticing one, and one that is seemingly nearer as COVID-19 vaccination distribution begins. Many work-from-home employees may also be wondering if it means 2021 holds the promise of finally returning to water their desk plants. With the developing availability of COVID-19 vaccines, employers are asking whether they may or should require employees to take the vaccine. Like most things COVID-19-related, the answer is complicated.

While employers may mandate an employee vaccine, there are several statutory measures that employers must consider in implementing any employee vaccine policy. The Occupational Safety and Health Act of 1970 permits employers to mandate vaccines, but may protect employees who oppose vaccination due to a reasonable concern to their health or life. The Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 require employers to consider reasonable accommodations for employees who cannot receive the vaccine due to a disability or sincerely held religious belief. Federal and state law may require reasonable accommodations for pregnant employees.

On the labor law front, the National Labor Relations Act may offer protections for collective activity by employees who oppose vaccine policies. Unionized employers must comply with applicable collective bargaining agreements and may have to bargain with the union over a new vaccination policy. Employers also may face morale problems or attrition by employees who oppose the COVID-19 vaccine for safety or other reasons.  Clearly, in implementing a vaccine policy, employers must proceed with care.

The Occupational Safety and Health Act

The General Duty Clause of the federal Occupational Safety and Health Act of 1970 (“the OSHA law”) requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm….”

In 2009, in response to the H1N1 (swine flu) outbreak, the Occupational Safety and Health Administration (“OSHA”) issued an interpretation letter on mandatory flu shots for employees of a health care facility. According to that letter, OSHA does not require employee vaccines, but an employer may mandate them.  OSHA cautioned that an “employee who refuses a mandatory vaccine because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death” may be protected under the whistleblower provisions of the OSHA law.  The letter did state, however, that OSHA “expects facilities to provide health care services to perform a risk assessment of their workplace and encourages employers to offer both the seasonal and H1N1 vaccine.”  OSHA further stated that employees must be properly informed of the benefits of vaccinations. Employers in non-health care settings who are considering a vaccine policy, should consider adopting this practice as well.

The Americans with Disabilities Act – Reasonable Accommodation

The Americans with Disabilities Act (“ADA”), among other things, limits medical inquiries and exams that employers may impose upon applicants and employees. After hire, an employer may only require a medical exam or make a medical inquiry, if it is “job related and consistent with business necessity.”

This week, the EEOC issued updated guidance stating that the administration of a vaccine is not a “medical exam.”   The EEOC also stated that asking whether an employee has been vaccinated is not a medical inquiry, but that asking pre-screening questions to determine whether the employee is medically able to receive the vaccine is a medical inquiry.

The ADA also requires covered employers to provide a reasonable accommodation to an otherwise qualified individual with a disability unless it causes an “undue hardship.”  “Reasonable accommodation” is “any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.” For purposes of the ADA, an undue hardship is “an action requiring significant difficulty or expense” and is generally a difficult standard to establish.

There is no ADA non-discrimination coverage when the employee causes a “direct threat” to the health of the employee or others, that cannot be reduced or eliminated by reasonable accommodation.

In the context of seasonal flu and communicable diseases, the Equal Employment Opportunity Commission (“EEOC”) has recognized that employers may mandate a vaccine provided that they consider and/or provide reasonable accommodations for those who are unable to take the vaccine due to a disability. The meaning of “reasonable accommodation,” “undue hardship” and “direct threat” depend upon the workplace and the individual at issue.

In a medical facility or other work environment in which employees come in frequent and close contact with others, particularly those with medical vulnerabilities, it will be relatively easy to establish that mandatory COVID-19 vaccines are “job-related and consistent with business necessity.” On the other hand, a business whose employees are rarely in physical proximity to co-workers, customers, vendors or the public may have a more difficult time demonstrating that a mandatory vaccine policy is “job-related and consistent with business necessity” and that a “direct threat” exists.

Earlier during the COVID-19 pandemic, in March 2020, the EEOC re-issued guidance related to pandemic preparedness and updated it to address COVID-19. In that guidance, the EEOC specifically recognized that COVID-19 poses a “direct threat,” based upon current Centers for Disease Control and local health department guidance, but noted that assessment may change if those agencies “revise their assessment of threat and severity of COVID-19.”  Accordingly, if the pandemic slows or ends, employers will need to re-evaluate any vaccine policy.

When an employee requests an exemption to a mandated vaccine due to a medical condition (i.e., a request for a reasonable accommodation), the employer may ask for reasonable medical documentation to confirm disability status and the need for reasonable accommodation.  The employer should also engage in what is called an “interactive process” with the employee, which is essentially communication about the reason for the need for a reasonable accommodation and whether there are safe alternatives to the vaccine. Reasonable accommodation to a mandatory vaccine policy may include providing additional personal protective equipment (“PPE”), transfer to another available position, remote work or other alternatives that would enable the employee to perform the essential functions of the job.

In some instances, even with a reasonable accommodation, failure to be vaccinated against COVID-19 may pose a “direct threat” to the health and safety of the employee or others, particularly in health care settings and they may be excluded from the workplace.

The EEOC’s updated guidance states that if an employee must be excluded from the workplace because they cannot have the vaccine for medical reasons, the employer should consider other reasonable accommodations before termination, such as remote work or leave under other federal, state or local laws, such as the Family and Medical Leave Act or the Families First Coronavirus Recovery Act.

Title VII of the Civil Rights Act of 1964 – Religious Accommodation

Similarly, under Title VII of the Civil Rights Act of 1964 (“Title VII”), employers may be required to consider a reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance that prohibits vaccinations. A reasonable accommodation for an employee’s religious brief is not required if it constitutes an “undue hardship” or “direct threat” to the employee or others. The threshold for establishing “undue hardship” for purposes of a Title VII religious accommodation must be “more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA.

Prior guidance issued by the EEOC states that religious beliefs for purposes of Title VII encompass those that are new, uncommon and not part of a formal church or sect, but do not include social, political or economic policies.

When an employee seeks exception from a workplace vaccination requirement due to religious belief, the employer should engage in the interactive process, like that required under the ADA.  The EEOC states, however, that the employer should assume that the employee’s request for a reasonable accommodation is based upon a sincere religious belief, unless the employer has an objective basis for questioning either the religious nature or sincerity of the belief.

If there is no reasonable accommodation to enable the employee to remain on the worksite due to their inability to receive the vaccine due to religious belief, the EEOC has stated that the employer should consider other reasonable accommodations such as remote work or leave under other applicable laws.

Pregnancy Accommodation

Pregnancy presents yet another unique issue given that there is little known about the effect of the new vaccines on pregnancy. The federal Pregnancy Discrimination Act requires employers to treat pregnant employees the same as similarly situated non-pregnant employees and may require reasonable accommodation for disabilities related to or arising from pregnancy.  Under the ADA, pregnancy itself is not a disability, but underlying conditions that cause limitations due to an employee’s pregnancy may invoke ADA coverage.

Some states, such as Maryland, have adopted laws that require reasonable accommodation due to pregnancy and childbirth, so providing a reasonable accommodation based upon pregnancy should be considered as well.

The National Labor Relations Act and Labor Law Considerations

The National Labor Relations Act (“NLRA”) applies to most private sector employers, regardless of whether the workforce is organized by a labor union.  The NLRA protects employees from discipline when they engage in collective activity regarding their terms and conditions of work. Employees who engage in activity to oppose mandatory vaccine plans may be protected from discipline for that activity.

Furthermore, employers who are subject to a collective bargaining agreement should review and comply with that agreement before implementing a vaccination program.  Implementing a vaccination policy or program also may be the mandatory subject of bargaining with the union.

A Final Note

Given the rapidity with which the COVID-19 vaccinations have been developed and approved, there is a reported widespread concern about their safety.  Employers must carefully consider negative impact on morale and attrition that may result from mandatory vaccine policies. At the very least, employers should provide information about the benefits of vaccinations and develop and communicate their vaccination policies with care.

For questions involving COVID-19 issues in the workplace, or assistance with developing or revising vaccine or other COVID-19-related policies, please contact your Wright, Constable and Skeen employment law attorney.