Can an employer mandate a COVID-19 vaccination? And if so, are there exceptions/exclusions that must be addressed? Since the COVID-19 vaccines were first approved for emergency use, the debate has raged as to whether employers can or should require employees (as a condition of employment) to be vaccinated. And, with large numbers on both sides of the debate, the answer, while clear from a legal standpoint (at least for the moment at the federal level) is not without controversy or consequences.
Requirements for Mandatory Vaccine Policies
Health care employers have long required flu vaccines of their employees, absent a medical reason or religious belief. Accommodations have been made as required for those who cannot receive the vaccine. And mandatory vaccines in the health care industry provide some protection for the health and safety of patients and the care providers. The same rationale and rules apply to the COVID-19 vaccine.
With respect to federal law, employers may require employees to receive the COVID-19 vaccine, subject to certain legally protected exceptions for disability and sincerely held religious beliefs. Any policy mandating the vaccine must have processes to address these exceptions. In the case of a disability, the employer must show that an unvaccinated employee poses a “direct threat” to the health and safety of that employee or others which threat cannot be eliminated by providing a reasonable accommodation. In the case of a sincerely held religious belief, the burden on the employer is lower and requires a reasonable accommodation unless the accommodation would pose an undue hardship (more than a de minimis cost or burden).
Regardless of how vaccine compliance is achieved, any provider of vaccines must assure that informed consent is obtained from everyone receiving a vaccine. And confidential information obtained in the screening process prior to administering the vaccine must be protected from unnecessary disclosure.
Recent EEOC Guidance
In December 2020, the EEOC published its initial vaccine guidance specifying the requirements in the event an employer should implement a mandatory COVID-19 vaccination policy. The guidance was consistent with applicable requirements for mandatory flu vaccines, specifically requiring accommodations for religious beliefs or disabilities preventing employees from receiving the vaccines. However, it left unresolved many questions with which employers continue to grapple.
The EEOC updated its guidance on May 28, 2021, to address those additional concerns. In summary, the EEOC reiterated that federal equal employment opportunity laws are not a bar to a mandatory COVID-19 vaccination policy, subject to the reasonable accommodation requirements of the ADA and Title VII. In implementing a mandatory vaccine policy, employers must exercise caution to evaluate and mitigate the risk of disparate impact (e.g., including the extent to which certain demographic groups may face barriers to receiving the vaccine). Written documentation and confirmation of vaccination status may be requested, but the employer must assure that the confidentiality of such information is protected in the employee’s confidential medical file.
State Law Considerations
With respect to state law, there are states currently debating legislative action to ban employers mandating vaccines. Pennsylvania is one such state where a proposed bill is working its way through the legislature. The bill’s sponsor claims the basis of the legislation is “a very simple question of workers’ rights.” Other states may be considering similar legislative bans, so it will be interesting to follow this issue in the coming months.
Consequences and Controversies
Despite the permissibility of mandating the COVID-19 vaccine for employees, many employers have decided they do not want the controversy or consequences of doing so. Consequences include challenges in finding qualified employees in a market with a current shortage in the workforce where mandatory vaccines are not commonplace (yet).
Protests and legal action by employees are also likely to follow any such mandate. Various legal challenges are already working their way through the state and federal courts. On June 12, 2021, in the first known ruling on the issue of mandatory vaccines, a Texas federal judge dismissed a case brought by employees at a Houston hospital who refused to comply with the vaccine mandate. The employees sued to block enforcement of the policy after being suspended, claiming that if terminated for refusal to be vaccinated, the termination would be wrongful and legally actionable. The judge upheld the employer’s policy as permissible under the law and that termination for failure to comply with the mandate would not constitute a wrongful termination.
Employers continue to be reluctant to deal with the distractions and employee backlash from mandating the vaccine. And, while the recent court ruling above may embolden some employers, particularly in the health care industry, most employers appear not to want to be on the leading edge of this issue.
In the health care industry, the adoption of a mandatory COVID-19 vaccine policy is likely to expand exponentially over the next year or so. Health care providers have always had additional employment requirements and many of them already mandate the flu vaccine. Mandating the COVID-19 vaccine is a logical next step.
In the face of the skepticism around and objection to COVID-19 vaccines, health care employers struggling to protect the health and safety of their patients as well as their workforce. Instead of mandating the vaccine, many are now evaluating and implementing incentives for their employees to obtain vaccines. Incentives can range from a cash reward to additional paid time off to other non-cash rewards that can be selected from a menu of options. One thing is clear- if incentives are developed, they should be carefully reviewed by competent legal advisors as well as tax advisors, since certain types of incentives may have tax and other implications.
The EEOC’s most recent guidance confirms that an employer may offer incentives to employees for receiving the vaccination (either by the employer or from a third party), provided that the incentives are not so large as to be coercive.
Some organizations, rather than offering cash incentives, are considering “raffles” for cash prizes. Caution should be exercised whenever offering a lottery-type arrangement as such arrangements can implicate both federal and state laws and are subject to strict rules.
Whether an employer is contemplating adopting and mandatory vaccination policy, dealing with employees who have refused the vaccine, or is preparing to roll out incentives to encourage employees to get vaccinated, the employer should consult with a health care attorney to assist in evaluating the legal implications of any such action.