Since the onset of the COVID-19 pandemic, I’ve spent substantial time discussing workplace vaccine mandates with employers. Even before vaccines were available, employers were interested in mandates as a tool to ensure safe working conditions. But even as recently as a month ago, many employers outside of healthcare settings continued to feel uncomfortable about the prospect of requiring employees to become vaccinated as a condition of continued employment, and workplace vaccine mandates remained the exception, rather than the rule.
Employer attitudes about vaccine mandates began to change significantly in late July 2021, when President Biden announced that federal employees and contractors would be required to either attest to vaccination status or to mask and social distance in the workplace, submit to periodic COVID-19 testing, and comply with restrictions on official travel. In the wake of this announcement, and seeking to manage an uptick in COVID-19 infections caused by the Delta variant, private employers are once again closely considering the pros and cons of requiring employees to become vaccinated.
Here are five reminders for employers now taking a second look at COVID-19 vaccine mandates.
No. 1: The EEOC has stated that workplace vaccine mandates are lawful.
In guidance issued May 28, 2021, the EEOC stated directly that federal nondiscrimination laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19” so long as such requirement is not drawn in such a way that it has a disparate impact on employees based on their race, color, religion, sex, or national origin and is not discriminatorily applied on the basis of such characteristics.
OSHA, the federal workplace safety and health regulator, has repeatedly emphasized the importance of vaccinations in ensuring safe workplaces, and in recent nonbinding guidance recommended that: “employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing—in addition to mask wearing and physical distancing—if they remain unvaccinated.”
Despite the above, employers should keep in mind that state law developments relating to COVID-19 are dynamic, and, in some cases, may make workforce-wide vaccine mandates impossible. Most notably, Montana recently enacted a law making it unlawful to discriminate against employees on the basis of vaccination status. Other state lawmakers are considering proposing or already debating similar bans on workplace vaccine mandates. In Texas, Governor Abbott recently issued an executive order banning government-imposed vaccine mandates, including mandates imposed by governmental entities with respect to their employees. The order does not prohibit private employers from imposing workplace vaccine mandates.
No. 2: The fact that certain available vaccinations are approved by the FDA only through Emergency Use Authorizations is unlikely to pose a legal impediment to an employer implementing a workplace vaccine mandate.
Part of the hesitance among employers about vaccine mandates stems from the fact that, until very recently, COVID-19 vaccines have been approved by the FDA only through Emergency Use Authorizations (“EUA”). Under an EUA, the FDA allows the use of unapproved medical products in an emergency, like the COVID-19 pandemic, to diagnose, treat, or prevent serious or life-threatening diseases or conditions. A significant portion of those employees identified as “vaccine hesitant” have justified their delay in becoming vaccinated by pointing to the fact that COVID-19 vaccines are not fully approved by the FDA.
Two recent developments significantly lessen the importance of the EUA issue for employers considering vaccine mandates. First, on August 23, 2021, the FDA fully approved the Pfizer-BioNTech vaccine, which will now be marketed as Comirnaty, for the prevention of COVID-19 in those 16 and older. As a result, an FDA-approved vaccine is available to employees subject to workplace vaccine mandates. Second, even if the Pfizer vaccine had not been approved, earlier, on July 6, 2021, the U.S. Department of Justice (“DOJ”) issued an opinion stating that the terms and conditions of an FDA EUA do not prevent an employer from mandating vaccination for COVID-19.
No. 3: Although an employer may mandate vaccinations, it may be legally required to excuse certain employees from the mandate based on disability or pregnancy or because of a sincerely held religious belief, practice, or observance.
In the May 28 guidance described above, the EEOC emphasized that employers are obligated under the ADA and Title VII to accommodate employees based on disability status and religion. In other words, an employee who does not get vaccinated due to a disability covered by the ADA or a sincerely held religious belief, practice, or observance covered by Title VII may be entitled, as a reasonable accommodation, to be excused from a workplace vaccine mandate, unless excusing the employee work pose an undue hardship on the employer. Likewise, employees who are not vaccinated because of pregnancy may be entitled under Title VII to adjustments to keep working if an employer makes modifications or exceptions for other employees. With respect to the types of accommodations that may be available to such employees, the EEOC suggests requiring an employee entitled to accommodation to wear a face mask at work, to socially distance from others, to work a modified shift, to get periodic tests for COVID-19, to be given the opportunity to telework, or to accept a reassignment.
No. 4: Employees who object to complying with workplace vaccine mandates for personal reasons unrelated to medical condition or religion most likely are not entitled to accommodation.
According to the EEOC, “[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII.” In practical terms, this means that an employee terminated for failure to comply with a workplace vaccine mandate likely has no viable claim under Title VII, even if the employee feels strongly that vaccine mandates should not be permitted, or if her refusal to become vaccinated is bound up with her social or political beliefs.
Even so, there are myriad practical, operational reasons for employers to carefully consider employee attitudes about COVID-19 vaccinations before implementing a vaccine mandate. For employees who oppose vaccinations and vaccine mandates, the social and political beliefs unpinning such opposition are, in many cases, very strongly held. In some cases, an employee would prefer unemployment (i.e., resignation) to compliance with a vaccine mandate. Since negative attitudes toward COVID-19 vaccines and mandates are particularly strong among workers in certain geographic locations and industry segments, employers weighing the pros and cons of mandatory vaccines must consider whether such mandate is feasible in light of possible impacts on employee morale and retention.
No. 5: All “vaccine mandates” are not the same.
As the pandemic has developed, so too has the sophistication of employer responses to ensuring safe working environments. Early on, a workplace “vaccine mandate” was envisioned to be just that—a policy under which an employer requires employees to become vaccinated against COVID-19 or face termination. While the EEOC guidance described above indicates that such a mandate is lawful (subject to an employer’s obligations with respect to accommodations under the ADA and Title VII), by and large, it is not the type of “mandate” that most private employers outside of healthcare settings have chosen to enact.
Currently, many employers choosing to implement vaccine mandates are doing so consistent with the federal government’s approach—allowing employees to choose to provide proof of fully vaccinated status or, instead, to remain subject to an array of workplace COVID-19 safety precautions including, most notably, frequent COVID-19 testing and workplace masking. A mandate crafted this way is more palatable for many employers since it preserves some measure of employee autonomy and, perhaps more importantly, because it mitigates legal compliance risks relating to employer accommodation obligations under the ADA and Title VII—if vaccines are not truly required, there is no obligation to accommodate an employee who cannot be vaccinated. Such employee simply remains subject to the COVID-19 safety protocols applicable to all unvaccinated employees.
The bottom line for employers
A one-size-fits-all approach to vaccine mandates is unworkable. Each employer’s workforce presents unique risks with respect to COVID-19 and worker attitudes about vaccines and vaccine mandates vary considerably from employer to employer. Before implementing a mandate, it is critical that an employer gather information about employee attitudes about vaccines and to consider likely reactions to various types of mandatory vaccine policies, including evaluating possible litigation risk arising from the implementation of a mandate. Involving employees in the development of such policies, including providing a meaningful avenue for employee feedback before a policy is implemented, is key to building consensus around and investment in an employer’s approach. Employers also should build into mandates room for further revisions responsive to future pandemic-related developments. Although we know now much more about COVID-19 than we did even just six months ago, the development of the pandemic remains unpredictable in many key respects, and in order to ensure workplace safety, employers must remain vigilant with respect to new developments and nimble with respect to implementation of policies to manage new risks and challenges.