Approximately 50 percent of Americans age 12 and older have received one dose of the COVID-19 vaccine, and 40 percent are fully vaccinated now. Most recently, the CDC issued guidance that people who are fully vaccinated do not need to wear face coverings in most settings. Still, many employers (rightfully) are grappling with whether to mandate employee vaccination as a condition of employment. The Equal Employment Opportunity Commission's (EEOC) May 28, 2021 guidance on mandatory employer COVID-19 vaccination programs should make employers feel more comfortable with mandatory vaccination programs for their employees.
The EEOC clarified its previously murky stance on this issue, expressly stating that "federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19," as long as employers allow for reasonable accommodation of their vaccine mandate for medical or religious reasons. Like all requests for accommodation, employers may avail themselves of the "undue hardship" exception for denying an employee's request for accommodation.
Even with the EEOC's guidance, it remains unclear if vaccines authorized under an Emergency Use Authorization (EUA) may be mandatory. The EEOC expressly declined to opine on this issue and instead referred employers to the FDA's website. The EEOC's guidance, however, confirms that from the EEOC's perspective, the federal laws within its purview (Title VII, ADA, ADEA, GINA) do not prohibit mandatory vaccination programs.
Voluntary, as opposed to mandatory, COVID-19 vaccination programs have fewer restrictions and pose few compliance obligations. The guidance also discussed employer-provided incentives for voluntary vaccination programs.
Key Highlights of the EEOC's Guidance Include:
- From the EEOC's perspective, a mandatory COVID-19 vaccination program is permissible if it is job-related and consistent with business necessity based on safety concerns arising from COVID-19.
- Employers must engage in the interactive process with employees who seek reasonable accommodation to the mandatory vaccination. Reasonable accommodations may include: requiring an unvaccinated employee to wear a face mask or work at a social distance from coworkers or non-employees, working a modified shift, remote or telework, or accepting a reassignment.
- If an employee cannot get vaccinated because of a disability or religious belief, the employer may not require vaccination for that employee unless the employer can demonstrate that the employee would pose a "direct threat" to the health or safety of the workplace.
- Employers should ask only for vaccination status. And employers should not ask employees why they are not vaccinated, as doing so may be a medical inquiry under the ADA.
- Documentation or other confirmation of COVID-19 vaccination status is confidential medical information, and it must be kept confidential and stored separately from the employee's personnel files.
- Employers may offer incentives (both reward and penalty) to employees for voluntarily receiving a vaccination. As discussed below, employers administering a vaccination program must limit the types of incentives they offer to avoid running afoul of the federal Americans with Disabilities Act and Genetic Information Nondiscrimination Act (GINA).
Other Legal and Practical Considerations for Employers Considering Mandatory Vaccination Policies
- Disparate Impact or Treatment Allegations: Because some individuals or demographic groups may face greater barriers to receiving the vaccination than others, employers requiring vaccines may need to address these concerns and offer solutions to increase vaccine access.
- State Privacy Laws: Employees' vaccination status may also be protected under state privacy laws. In California, collection of employees' vaccination status data could also trigger the notice requirement for employee data under the California Consumer Privacy Act (CCPA).
- Impact on Employee Morale: Mandatory vaccination policies may impact workplace morale, and could create employee relations and public relations challenges, as well as perceived retaliation or ostracization for those employees who do not get vaccinated.
- Remote Workers: Because a vaccination requirement must be job-related and consistent with business necessity based on safety concerns, employers should consider whether it is appropriate to require remote workers to receive vaccinations if those workers will never come into the office or worksite.
- Public Employers: Public employers may face constitutional challenges from employees based on due process, free speech and religious rights, particularly because the reaction to COVID-19 has created political divides.
Considerations for Employer-Administered Versus Third-Party Vaccination Programs
- Vaccine Pre-Screening Questions May Be Medical Inquiries: The screening questions an employer or its agent asks before administering the vaccine might be medical inquiries. Employers who administer the vaccine (either directly or through a third party) may only ask pre-screening questions that are "job-related and consistent with business necessity," such as limited questions about the employee's symptoms or exposure.
- Workers' Compensation Risk: Employers who administer vaccinations to employees (directly or through a third party) may be responsible for workers' compensation claims stemming from vaccine-related injuries and illnesses.
- Wage and Hour Issues: Depending on the nature and logistics of a vaccination program, employers may be responsible for compensating employees for time spent obtaining mandatory vaccinations.
- Incentives: If an employer administers the vaccine, the employer's incentive cannot be so substantial that it is coercive. Employers cannot incentivize employees in return for an employee's family member getting vaccinated without running afoul of the Genetic Information Nondiscrimination Act (GINA).
- Collective Bargaining: Employers with unionized workforces may need to bargain with unions prior to implementing vaccination programs.
What Should Employers do Now?
- Take Stock: Consider whether a vaccination program is appropriate for your business needs in light of the risks above. For employers who still have a largely remote workforce, this need may not be as urgent.
- Continue to Educate Employees on Vaccines: If you haven't already, consider providing employees with access to state and federal government websites that discuss the benefits, risks and logistics of vaccinations.
- Incentivize Carefully: Consider tailored, business-specific minimal incentive programs that remove hurdles to vaccination for employees who choose to get vaccinated while avoiding penalizing employees who opt out for medical or religious reasons.
- Notify Employees of the Reasonable Accommodation Process: Communicate to your employees in writing that you will consider requests for reasonable accommodation for exemptions from the mandatory vaccination program. Provide managers, supervisors, and those responsible for implementing the program with clear information about recognizing and handling those requests appropriately.
- Safeguard Employee Confidential Vaccination Status Data: Ensure that information relating to employees' vaccination status is maintained in separate confidential files.
- Monitor OSHA Guidance: As of the date of publication, OSHA still has not issued guidance suggesting a vaccine is required for a safe working environment. OSHA will likely update its guidance soon based on the CDC's updated guidance.
- Stay Tuned: This is a rapidly evolving area where federal and state guidance seems to change by the day. Keep up-to-date by subscribing to Lane Powell's legal updates.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.