Can Employers Require Workers to Get a Covid-19 Vaccine?
Here’s what legal experts are saying, along with tips to help employers evaluate whether to implement a mandatory vaccination program.
Employers are currently evaluating whether to implement a mandatory Covid-19 vaccination program, now that two vaccines have been approved and are in distribution across the United States. This evaluation process is even more critical with the onset of the flu season and the rising numbers of coronavirus infections.
To start, an employer must determine whether it needs to mandate the vaccine in its workplaces. This decision requires balancing the company’s ability to reduce or eliminate the spread of the virus through other available means, against the company’s desire to avoid the additional legal and operational risks associated with a mandatory program.
As employers evaluate whether they need a mandatory program, they will need to consider the following questions:
- Reasonable accommodation exceptions. Can the employer respond appropriately to requests for accommodations?
- Equal employment opportunities. How will a mandatory program impact attraction and/or retention of talent?
- Compliance concerns. Can a mandatory program be compliant through all its stages, without posing additional legal risk to the company?
- Labor relations. Are all or part of the workforce unionized and subjected to a collective bargaining agreement? If so, must the issue be subject to additional bargaining?
- Workers’ comp. Can an employee claim an injury from receiving a mandatory vaccination and filing a workers’ compensation claim?
- Employee safety concerns. Can an employee object to a vaccination for ‘safety reasons’—and, if so, is that employee protected under the Occupational Safety and Health Act administered by the Occupational Safety and Health Administration (OSHA)? Can employees collectively object to a mandatory vaccination as a term or condition of employment and have protection under the National Labor Relations Act (NLRA)?
Mandatory Vaccination Programs
Generally, an employer can implement a mandatory vaccination program. This ability by the employer, however, is subject to reasonable accommodation obligations under federal, state, and local laws for those with disabilities who request a medical accommodation or those who have a bona fide religious belief against vaccinations.
An employee requesting an accommodation under the Americans with Disabilities Act (ADA) must first establish that he/she has a covered disability. Note that there is a circuit split regarding whether sensitivity to vaccinations constitutes a disability.
If an employee does request an accommodation (to not receive a vaccination) and is covered under the ADA, is that the end of the story for the employer, and must it accommodate? An employer can defeat an accommodation if it can show special circumstances exist resulting in an undue hardship if the employee is accommodated and does not receive a vaccination. Accommodations for those eligible to receive one can include a different vaccine solution without the offending or triggering ingredient, a remote work option if the employee’s position allows, or possible changes in the employee’s duties so long as those changes are not considered ‘essential functions’ of the role.
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An employee requesting a religious accommodation for exemption from an employer’s mandatory vaccination program must establish a bona fide religious belief for such a request to pass muster under Title VII. Personal or ethical objections are generally insufficient to meet this high threshold.
If the requesting employee does meet the threshold of a bona fide religious belief, an employer can still deny the accommodation if it can establish that the lack of a vaccine to the employee would pose an undue hardship to the workplace. Defined, an ‘undue hardship’ evaluation under Title VII must establish harm to the employer, its employees, or third parties that could result due to the accommodation. Note that there is a circuit split on whether ‘speculative harm’ is sufficient to establish undue hardship. One federal court has ruled in a speculative harm case that exemptions to a mandatory flu vaccination could place other vulnerable people at risk.
It also should be noted that several state legislatures have enacted laws surrounding mandatory vaccinations for school-aged children that establish differing standards. The legislation was premised on public health concerns and an overall concern for the protection of minors within their locales. Some state and local legislatures may also propose and pass restrictive legislation related to employers’ mandated Covid-19 vaccination programs.
Many legal experts have suggested that mandatory vaccination programs involving Covid-19 may be evaluated differently because we are still currently in the grip of the pandemic, which has led to large numbers of infections, significant numbers of fatalities, and considerable economic devastation for businesses across many industries. However, Covid-19 and the resulting pandemic could also be a matter of first impression discarding previous evaluation standards and precedents surrounding other mandatory programs.
In the past, the Equal Employment Opportunity Commission (EEOC) has generally been hostile to employers’ mandatory vaccination programs, while the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have been more accommodating to the issue.
However, the EEOC has already acknowledged that the Covid-19 pandemic meets the ADA’s ‘direct threat’ standard, thereby establishing that a Covid-19–infected person in the workplace poses a significant risk of substantial harm to others. This acknowledgement gives employers added measures they can use around testing that are generally prohibited by the ADA.
Experts are hesitant at this time to predict whether previous government standards will remain constant for an employer-based Covid-19 mandatory vaccination program.
How Can Employers Prepare?
It is believed that because two Covid-19 vaccines have recently been approved and are currently in distribution, both state and federal authorities will issue more guidance and/or legislation around employer-mandate programs. Employers should begin to evaluate their specific workplace situation, and determine the correct course of action by considering the following:
- Evaluate industry and workforce facilities. Employers should ask whether a mandatory vaccination program is necessary for their industry, workforce, or workplace facilities. Is a program necessary when individuals can obtain their own vaccination? Is a positive outcome of reducing virus spread also possible by encouraging vaccination—emphasizing established CDC guidelines and/or remote work without mandating vaccinations?
- Consider outlying restrictions. If the employer deems a mandatory vaccination program necessary, should it be companywide, or should it restrict the mandate to employees in a specific geography (high infection rates) or at a workplace where other alternatives (remote work or social distancing) cannot be enacted or maintained?
- Re-evaluate accommodation processes. Employers planning to require vaccinations should evaluate their accommodation processes and staffing now, to avoid delays and additional legal risk. The employer may also need to accommodate employee requests for additional personal protective equipment (PPE), modification of job duties, and/or use of several types of vaccine solutions. It is wise to look forward and prepare.
- Establish who is in charge. Employers should have one individual or department who is responsible and accountable for compliance around a mandatory vaccine program and its processes.
- Calculate the cost. Employers need to determine whether they will provide the vaccines at little or no cost to employees to coincide with their choice of employee program.
Employers should begin their evaluations of whether to implement a mandatory program by considering the characteristics of their industry, workforce, and acceptable legal risk. Employers’ approach to the rollout of a mandatory Covid-19 vaccine program will ultimately make or break their relationship and trust with their workforce. With that in mind, employers must stay on top of the decision and remain flexible as the virus and the vaccines move forward. Most important, employers must be conscious of how they communicate to employees, to maintain their trust and mitigate any potential risk.
Jody McLeod (info@mcleodlegalsolutions.com) is founder and principal at McLeod Legal Solutions. She is a licensed attorney with more than 30 years of legal experience in both the private and public sectors. Jody’s specialties include general employment law advice and counsel; third-party internal investigations; NLRA/NLRB matters; wage and hour compliance (advice and counsel as well as mitigation efforts); risk management; litigation; and litigation management specializing in employment discrimination and wage and hour class actions.
From: PropertyCasualty360