You can’t listen to the news without hearing a story about a possible COVID-19 vaccine. Latest reports indicate that a vaccine will be approved for use in the not so distant future. If employers have not been thinking about this development, they should.
As states are opening up again, employers are already struggling with how to work with employees who do not want to return to the office because they are in a high-risk group or are just generally concerned about exposure to COVID-19 in the workplace (notwithstanding enhanced cleaning and hygiene protocol). Many of those employee concerns might be eliminated with a vaccine, but not all employees are going to agree to be vaccinated for a myriad of reasons. In that situation, what are the most significant legal and employee relations considerations? For example, do employers have to allow employees to continue working remotely or can the employer mandate leave or terminate employment? These will be difficult questions and employers should start now, thinking about what their vaccine policy will be.
Legally speaking, vaccines in the workplace are not a novel subject. For example, the influenza vaccine has received ample attention by both government agencies and the courts in the employment context for years. In this post, I want to highlight the current guidance on vaccines from the EEOC and OSHA.
EEOC VACCINE GUIDANCE
In March 2020, the EEOC updated its “Pandemic Preparedness In the Workplace and the Americans With Disabilities Act” guidance and touched on the vaccine question. One of the questions tackled in the guidance was the following: “May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?” The answer from the EEOC was “No.” More specifically, the EEOC recognized that although an employer could mandate vaccination as a condition of employment, it was required to offer an exemption based on an ADA disability that prevents the employee from taking the influenza vaccine. According to the EEOC, “[t]his would be a reasonable accommodation barring undue hardship (significant difficulty or expense).” Likewise, under Title VII of the Civil Rights Act of 1964, the EEOC opined that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA). The guidance concludes by stating that ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it, with the caveat that as of the date of issuance (March 2020), no vaccine was available for COVID-19. The takeaway is that at least for ADA-covered employers, any mandatory vaccine policy should include an exemption process for persons with disabilities or sincerely held religious beliefs that legitimately prevent them from taking the vaccine.
More challenging for employers is what to do with an employee who demonstrates they are exempt from any vaccine requirement under the ADA or Title VII. For example, in many ADA cases, employers will have to consider alternative accommodations (e.g., masks, architectural changes), unless the unvaccinated employee poses a direct threat under the ADA that cannot be eliminated through reasonable accommodation. These are intensely factual questions that will depend on the nature of the employer’s business and the essential duties of the employee’s position, among other things.
OSHA VACCINE GUIDANCE
OSHA has also waded into the influenza vaccine territory. In a 2009 interpretation letter, OSHA was asked whether an employer can mandate a flu shot. OSHA responded “Yes,” and added that although OSHA does not require it, an employer can mandate a flu vaccination. The agency noted, however, that an employee who refuses vaccination because of a reasonable belief that they have a medical condition that creates a real danger of serious illness or death may nevertheless be protected under Section 11(c) of OSHA pertaining to whistle blower rights. The gist of the interpretation letter is that an employer can mandate vaccination, however, it should tread cautiously before taking action against employees with legitimate medical conditions that may preclude them from being vaccinated. Again, this suggests that any vaccine policy will have to carefully consider the medical documentation and individual facts of each employee in determining how to respond to an employee who refuses to take the vaccine and what alternatives may (or may not) be available.
The Bottom Line For Employers
We predict virtually every employer is going to have to consider what their policy on a COVID-19 vaccine will be, even if the decision is not to have a policy at all or to simply encourage vaccination. This will require employers to determine (i) whether the vaccine will be mandatory for some or all of their workplaces and employees, (ii) what exemptions will be available and what will be the process for determining if an exemption applies, and (iii) how to handle exempt employees (e.g., do they pose an undue safety risk or a direct threat? are there alternative ways to accommodate short of mandatory leave or employment termination?). These are different times and these are complex, legal, factual, and medical issues. M2D will continue to monitor both agency and court guidance as the possibility of a COVID-19 vaccine becomes more certain and push out new information when it becomes available.