Employers and COVID-19 Vaccines: Considerations for Making Them Mandatory

By Naomi D. Johnson & Liani J. Reeves - Bullard Law

December 17, 2020

As we watch the first recipients of the COVID-19 vaccine receive their inoculations, employers are left wondering: can (and should) they implement mandatory COVID-19 vaccination programs for their employees?
                                                        
Although mandatory vaccination programs are nothing new, this issue is now at the forefront of many employers’ minds, hoping to get their business back to some semblance of normalcy as expeditiously as possible. And while, generally speaking, an employer can require that its employees obtain the COVID-19 vaccine, there are some important exceptions and considerations to keep in mind.

The EEOC’s Guidance

On December 16, in response to growing calls for guidance, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) updated its Technical Assistance Guide, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws,” to provide its blessing to employer-mandated COVID-19 vaccination programs, subject to several important exceptions. The relevant portions are summarized below.
 
•    A COVID-19 Vaccine is not a Medical Examination: In the newly issued guidance, the Commission confirmed that a COVID-19 vaccine administered by an employer to an employee is not a medical examination because the “employer is not seeking information about an individual’s impairments or current health status[.]” This is significant because it allows employers to mandate that their employees receive the vaccine, subject to certain exceptions.
 
•    Pre-Screening Vaccination Questions: Although mandatory administration of the COVID-19 vaccine by an employer is not a medical examination, the EEOC cautioned that pre-screening vaccination questions may implicate the Americans with Disabilities Act’s (“ADA”) provision on disability-related inquiries, because such questions are likely to yield information about an employee’s disability. Consequently, if the employer administers the vaccine, it must show that any screening inquiries are job-related and consistent with job necessity. “To meet this standard, an employer would need to have 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 her or himself or others.”

There are two situations where an employer may ask disability-related screening questions without having to meet the “job-related and consistent with job necessity” requirement:

o    If the employer chooses to make the COVID-19 vaccine voluntary (as opposed to mandatory) and the employee has the choice whether to answer the pre-screening questions, the ADA will not be implicated.
   
o    If the employer requires that its employees receive the COVID-19 vaccine and the employee receives the vaccine from a third party (by their doctor or a pharmacy, for example) with no connection to the employer, the ADA will not be implicated.

Keep in mind that any information an employer obtains in connection with the pre-screening questions must be kept confidential.
 
•    Employers may Require Proof of Vaccination: The Commission’s guidance confirms that employers may freely seek proof of vaccination from their employees and it does not constitute a disability-related inquiry.
 
•    Employers Must Still Consider Requests for Accommodation under Title VII and the ADA: The Commission confirmed that employers must, as always, consider employee requests for accommodation based on sincerely held religious beliefs or disability. Those exceptions are discussed below:

o    Religious Accommodations under Title VII: Under Title VII, an employee’s “sincerely held religious belief” may establish their entitlement to religious accommodation. Personal or ethical objections typically fail to satisfy the requisite test. So an employee’s personally held anti-vaccine beliefs will be insufficient to satisfy the legal requirement of establishing a sincerely held religious belief to obtain an exemption. Even if an employee can demonstrate a sincerely held religious belief, the employer may deny an accommodation request if it poses an undue hardship on business operations. In the context of this type of accommodation, the relevant analysis includes consideration of harm to the employer, its employees, and third parties. This requires an individualized assessment to determine whether an accommodation is reasonable and how it will impact business operations and co-worker health and safety.
 
o    Medical Accommodations under the ADA: Employers may be required to allow individual employees to be exempted from a mandated COVID-19 vaccination program because of a covered disability under the ADA. If, because of a disability, an employee requests an exemption from the mandatory vaccination requirement as an accommodation, the employer must determine whether the requested accommodation is reasonable and whether it imposes an undue burden on operations and the health and safety of co-workers. As with any ADA accommodation request, employers should conduct an individualized assessment to determine whether the accommodation is reasonable and how it will impact business operations and co-worker health and safety.

•    Direct Threat Analysis is Required: Assuming an employee is entitled to an exemption from receiving the COVID-19 vaccine because of a sincerely held religious belief or disability, employers may be allowed to exclude that employee from the workplace. However, the employer must demonstrate that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This requires that employers undertake an individualized assessment of four factors to determine whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. A direct threat conclusion should include a determination that an unvaccinated employee will expose others to COVID-19 in the workplace.

For employees who cannot receive the vaccine and pose a direct threat, assuming there is no way to provide a reasonable accommodation (absent undue hardship) that would reduce or eradicate the direct threat, they may lawfully be excluded from the workplace. This does not also mean that the employer can automatically terminate the employee. Before making any such decision, the employer should consult with legal counsel to determine whether any other laws protect the employee from being terminated.

Additional Considerations for Employers

In addition to the EEOC’s guidance, we outline below additional considerations that employers should be aware of when deciding whether to implement a mandatory COVID-19 vaccination program.
 
•    Health Care Workers and Emergency Response Employees: Oregon has enacted laws (ORS 433.407-433.423) specific to health care workers and emergency response employees who are subject to exposure to infectious diseases and where exposure is not entirely preventable due to the nature of their duties. ORS 433.416 requires that “an employer of a health care worker” at risk of contracting an infectious disease in the course of employment must provide the worker with preventative immunization at no cost to the worker if such preventative immunization is available and medically appropriate. However, the statute also provides that a “worker” (defined as a person licensed to provide health care, an employee of a health care facility, health care provider or a clinical laboratory, or a firefighter, law enforcement officer, or corrections officer or parole and probation officer) shall not be required as a condition of work to be immunized unless such immunization is otherwise required by federal or state law, rule or regulation. At this point, there are no federal or state laws, rules, or regulations that require COVID-19 vaccinations, but that may change as the vaccination becomes more readily available. If you are a healthcare or law enforcement employer seeking to require your employees to obtain a COVID-19 vaccination, we recommend consulting with legal counsel.
 
•    Occupational Safety and Health Administration (“OSHA”): OSHA’s general duty clause requires employers to furnish employees a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA has statutory authority to issue a General Duty Clause citation when no specific standard applies. It is unclear whether OSHA would issue citations under the General Duty Clause if an employer fails to offer or require COVID-19 vaccines. Such a violation would likely depend on the nature of the work and the workplace in terms of the likelihood of exposure, the employer’s health and safety program, and whether the employer has followed applicable guidance from the Centers for Disease Control and OSHA on vaccinations. OSHA has yet to issue any guidance on COVID-19 vaccines. In 2009, OSHA issued guidance on whether an employer could mandate that an employee accept a flu shot. OSHA outlined its expectations that facilities providing healthcare services would provide a risk assessment of their workplace and encouraged healthcare employers to offer seasonal and H1N1 vaccines, noting that employees need to be properly informed of the benefits of vaccinations. OSHA further stated that although it does not explicitly require employees to take the vaccines, an employer may do so unless the employee has a reasonable belief that they have a medical condition that prevents them from safely receiving the vaccine.
 
•    Collective Bargaining Agreements: Employers with workers subject to a collective bargaining agreement should review that agreement before implementing any mandatory vaccination program. Even in light of a strong management rights clause, requiring union-represented workers to be vaccinated will likely raise bargaining considerations. If the decision to require vaccination is a mandatory subject of bargaining, then bargaining to agreement or impasse and implementation (or interest arbitration, in the case of public safety employees) must precede the decision. For public employers in Oregon, it is likely that the decision relates to employee and public safety and core management rights predominate; therefore, the decision likely would be found by the Employment Relations Board to be a permissive subject of bargaining. If that were the case, bargaining might be required concerning the impacts and effects of vaccination, but not the decision or requirement itself.
 
•    National Labor Relations Act: Even non-union employers should be aware of Section 7 of the National Labor Relations Act, which protects employees’ rights to come together in mutual aid and protection. Employers who take action against employees who come together and protest an employer’s vaccination program could be subject to an unfair labor practice.

Key Takeaways for Employers

Now that COVID-19 vaccines are in the initial phases of distribution, it is only a matter of time before the vaccine becomes readily available to you and your workforce. The time is now to start considering how you may respond as an employer. Employers considering whether to mandate COVID-19 vaccinations should start by developing or modifying their policies to outline the expectations and procedures for medical and religious accommodations.

It is recommended that you communicate with your employees and your unions when developing a policy. This will help to foster employee goodwill and buy-in. Part of the program should include informing employees about the benefits of vaccinations.

You may want to consider establishing a program where employees receive the COVID-19 vaccine from a third party with no connection to the employer to avoid pre-screening questions by the employer triggering the ADA.

While the EEOC guidance is helpful in that it green lights the use of mandatory COVID-19 vaccination programs (subject to the exceptions discussed above), employers should give some consideration to whether they want to make the vaccine mandatory. Employers may want to consider alternatives to a mandatory vaccination policy, such as encouraging employees to get the vaccine rather than requiring it, and even providing lawful incentives.

As the COVID-19 vaccine becomes more of a reality, federal and state agencies will likely issue more guidance on this issue. We will keep you apprised. In the meantime, Bullard Law attorneys are ready to advise and assist.