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What Employers Must Know About the Risks Associated With Mandatory COVID Vaccination Policies

As the long awaited COIVD-19 vaccines are finally now available, employers are beginning to inquire whether they can or should implement a mandatory COVID-19 vaccination policy as a condition of employment. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (the “EEOC”) updated its technical assistance document entitled “What You Should Know About COVID-19, the ADA, the Rehabilitation Act, and other EEO Laws” (the “Guidance”) to provide guidance to employers regarding the implications of COVID-19 vaccinations in the workplace. While COVID-19 vaccines are giving employers hope that businesses and the workplaces can slowly return to normal, employers should be aware that there are certain risks involved with mandating or incentivizing employees to obtain a COVID-19 vaccination. Below, we discuss the some of the risks associated with a mandatory vaccination policy and address the key components of the EEOC’s guidance.


All employers should first note that we highly recommend that you consult PMP or another professional before implementing a mandatory vaccination policy to ensure that your mandatory vaccination policy does not violate any federal, state or local laws and regulations.


Is a mandatory vaccination policy lawful?


As a threshold matter, the EEOC’s Guidance does not directly state whether an employer can implement a mandatory vaccination policy. The Guidance does strongly suggest that employers may mandate employees obtain the COVID-19 vaccine as a condition of continued employment, or at the very least, as a condition to permit the employee to physically return to the office or workplace. However, as discussed below there are certain exceptions as to whether an employer can mandate vaccinations.


Should employers administer the vaccine to employers directly?


The Guidance states that the “vaccination itself it is not a medical examination.” However, the questions required to pre-screen an individual prior to administering the vaccine may implicate the American with Disabilities Act’s (the “ADA”) provisions on disability-related inquiries, which are inquiries likely to elicit information about a disability. If an employer chooses to administer the vaccine itself or retains a third party to do so on the employer’s behalf, the employer must demonstrate that the vaccine is “job-related and consistent with business necessity” in order to mandate employees receive the vaccine. Employers must meet this standard by demonstrating “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of himself or others.”


It is important for employers to note that the ADA’s disability-related inquiry standard is not triggered if (1) the employer offers the vaccine on a voluntary basis or (2) if the employee receives the vaccine from third party that does not have a contract with the employer, i.e., an independent health care provider or a pharmacy. To avoid violating the ADA’s provisions on disability-related inquiries, if an employer is going to require employees to get the COVID-19 vaccine, employers are encouraged to require employees to obtain the vaccine from a third party such as their own health care provider or a pharmacy.


What are the exemptions that employers must be cognizant of if implementing a mandatory vaccination policy?


It is likely that if a mandatory vaccination policy is adopted, employers will likely be confronted with situations where employees are requesting a waiver to the vaccination requirement due to a disability or due to a sincerely held religious belief against vaccinations. Employers must note that if an employee requests this waiver because of a disability, the Guidance instructs employers to make a determination as to whether the employee’s presence would “pose a direct threat to the health or safety of individuals in the workplace.” The Guidance further explains that employers should conduct an individualized assessment to determine whether a direct threat exists based on the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that that the potential harm will occur; and (4) the imminence of the potential harm. The EEOC states that “[a] conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If it is determined that the employee poses a direct threat, the employer must then consider whether a “reasonable accommodation” can be implemented to reduce the direct threat level to an acceptable level while still allowing the employee to physically attend work. If no such reasonable accommodation can be met, the employer can exclude the employee from physically entering the workplace. However, this does not mean the employer may automatically terminate the worker. The Guidance clearly states that employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities. Employers will need to determine whether another reasonable accommodation is available that would permit the employee to keep their job, such as permitting the employee to telework or to take legally mandated leave.


If an employee requests a waiver from the vaccination requirement based on a sincerely held religious belief, the employer must provide the employee with a reasonable accommodation in accordance with Title VII of the federal Civil Rights Act unless that accommodation would pose an undue hardship on the employer. Title VII defines an “undue hardship” as an accommodation that has “more than a de minimis cost or burden on the employer.” The EEOC’s Guidance further explains that if an employer has an objective basis to question an employee’s religious nature or their sincerity of religious belief, the employer is “justified in requesting additional supporting information” from the employee. However, the EEOC does note that “because the definition of religion is broad and protects, beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held belief.” Additionally, employers may not automatically terminate the worker because the employee cannot be vaccinated because of a sincerely held religious belief. As discussed above, employers will need to determine whether another reasonable accommodation is available that would permit the employee to keep their job, such as permitting the employee to telework or to take legally mandated leave, so long as those potential accommodations do not impose undue hardship on the employer.


Employers must also take into consideration the risks associated with providing waivers and reasonable accommodations. If a mandatory vaccination policy is adopted, employers must consistently apply that policy to all similarly situated employees in order to avoid any potential claims of discrimination. All supervisors and staff should be trained on how the policy will be implemented and enforced; and how to manage exceptions to the policy consistently, including with respect to exemptions for a disability or religious reason.


Should a mandatory vaccination policy require employees to show proof of vaccination?


The Guidance clearly states that requiring an employee to provide documentation that he or she received a COVID-19 vaccination is not a disability-related inquiry under the ADA, since this is not likely to elicit information about a disability. However, any inquiries seeking information from an employee regarding a reason for not receiving a vaccination may elicit information regarding a disability and therefore would be subject to the disability-related inquiry standard under the ADA. If an employer requires employees to provide proof that they received a COVID-19 vaccination from a pharmacy or their own health care provider, employers should warn employees not to divulge any medical information that would implicate the ADA. Employers must also note that because proof of vaccination constitutes personal data relating to an employee, that employee information must be treated and stored as confidential medical information.


Will a mandatory vaccination policy implicate employee rights under other laws?


A mandatory vaccination policy may implicate certain laws such as the Occupational Safety and Health Act in addition to an employee’s workers’ compensation rights. Employers are required under the General Duty Clause of the Occupational Safety and Health Act (the “OSHA Act”) to provide employees with a “safe workplace.” Hence, an employee could make a claim that their employer’s failure to mandate vaccinations in the workplace violates the General Duty Clause under the OSHA Act. However, employers could defend this type of claim by contending that its use of social distancing, protective equipment and barriers are sufficient to keep employees safe in accordance with the General Duty Clause.


Additionally, should an employer implement a mandatory vaccination policy it is possible that an employee’s adverse reaction to the mandated vaccine may lead to a workers’ compensation claim by an employee. While we do not have a frame of reference as to whether the employee’s workers’ compensation claim would be successful for an adverse reaction to a COVID-19 vaccine, the New York State Workers’ Compensation Board previously upheld an award of benefits for an employee’s adverse reaction caused by a mandatory influenza vaccination. Employers may be able to avoid an employee’s adverse reaction turning into a workers’ compensation claim by providing a few days of paid time off for employees to get the vaccine and recover.


Employers must also take into consideration whether a collective bargaining agreement could affect whether the employer can implement a mandatory vaccination policy. A collective bargaining agreement may prohibit or limit an employer’s ability to mandate vaccinations to certain unionized employees.


Employers should also note if they do impose a mandatory vaccination policy, it is likely that the employer would be required to compensate the employee for the time taken and possibly the costs of travel to get vaccinated, if the appointment is during the employee’s working hours.


Are there risks associated with offering incentives if an employer chooses not to implement a mandatory vaccination policy?


Some employers may choose instead to highly encourage their employees to get a COVID-19 vaccination by offering incentives to get vaccinated. Employers should first consider the tax consequences of such incentives and determine whether those incentives offered may be perceived as coercive due to high values. Employers may consider offering de minimus cash incentives or additional paid time off for up to 48 hours after vaccination to account for any adverse reaction. However, employers should be aware that there are certain legal uncertainties regarding potential incentives. For instance, offering vaccination incentive programs may give rise to potential discrimination claims from employees who cannot or will not participate in the program. More specifically, these incentive programs may lead to potential discrimination claims under the ADA or Title VII. Employers should be prepared to respond to employees who request the incentive yet claim they cannot be vaccinated due to a disability or sincerely held religious belief. Employers may want to develop a different way other than vaccination for those particular employees to obtain an equivalent incentive.


How would a mandatory vaccination policy affect employee morale?


Employers should consider how employee morale will be affected by a mandatory vaccination policy, as compared to an alternative policy that seeks to educate or strongly encourages employee to be vaccinated. It should be expected that employees will have divergent and conflicting views on whether they believe they should get the COVID-19 vaccine. Employers should also be prepared for employees to have clashing views on the subject of mandatory vaccinations. However, regardless of the type of policy you ultimately implement, the key to reducing the possibility of a decline in employee morale will be the way in which the policy is communicated to employees.


Next Steps


Prior to implementing any policy regarding COVID-19 vaccinations, we highly recommend all employers consult with PMP or another professional to ensure that all federal, state, and local laws and regulations are complied with. It is also highly recommended that employers continue to monitor the EEOC’s guidance as well as the guidance from OSHA relating to COVID-19 vaccinations.

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