Z&R OrangePaper
COVID vax conundrum: to mandate, to implore, to ignore?
Considerations for employers contemplating employee vaccination
In the scheme of things, it’s not surprising that the issues presented by mandatory vaccination continue to evolve. As COVID-19 vaccines become more widely available to the public, employers understandably want to know: should we require employees to get vaccinated for COVID-19?
The best question for employers, both public and private, is not a new one: what’s right for our organization right now? What’s new are the many considerations, some developing in real time, that employers must consider to answer that question.
CAN WE MANDATE VACCINATIONS FOR OUR EMPLOYEES?
The short answer.
Right now, employers, both public and private, can legally mandate COVID-19 vaccination for their employees as a condition of employment. However, all employers must understand the applicable limitations set forth in state and federal law. How employers choose to mandate vaccination will make a big difference in terms of which laws are implicated. Also, employers should be mindful of the potential need to bargain for a mandatory vaccination policy where a collective bargaining agreement exists.
The longer answer.
EEOC Guidance. The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued pandemic-related guidance since October 2009, during the spread of the H1N1 virus.[i] While the EEOC doesn’t endorse employer-mandated vaccination policies, it doesn’t prohibit them either. The EEOC’s guidance, past and present, focuses on the limits that federal nondiscrimination laws place on such policies. Under the Americans with Disabilities Act (“ADA”), an employee may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation for a disability. Under Title VII of the Civil Rights Act (“Title VII”), an employee may be entitled to an exemption for a sincerely held religious belief that prevents the employee from taking the vaccine. The EEOC has long recommended that employers encourage, rather than compel employees to get vaccinated.
When the EEOC updated its pandemic guidance in March 2020 to address COVID, it definitively stated that COVID-19 is a direct threat under the ADA. This was an important development for employers because the direct threat analysis informs so much of what the EEOC deems permissible in the context of the pandemic, from screening employees for COVID symptoms to testing them for the virus. The updated pandemic guidance also gave employers something of a safe harbor by stating that EEO laws, while still applicable during the COVID-19 pandemic, do not interfere with or prevent employers from following guidelines from the Centers for Disease Control and Prevention (“CDC”) and other public health authorities.
The EEOC issued new COVID technical assistance in March 2020 that it updated in December 2020 to address vaccines.[ii] The EEOC echoed its previous guidance and explained in more detail the limits that federal non-discrimination laws place on employer vaccine mandates. Employers considering vaccine mandates should review this guidance in detail, but here are the high notes:
- Vaccination itself is not a “medical examination” under the ADA, but pre-vaccination screening questions may be. The ADA restricts medical information that an employer may obtain from an employee to that which is “job related and consistent with business necessity.” If an employer requires an employee to receive a COVID vaccination from the employer and asks screening questions, which may elicit information about whether an employee has a disability, those questions are subject to that standard. If an employee receives vaccination from an unrelated third party (e.g., a pharmacy), this is not an employer concern.
- If an employee can’t comply with a mandatory vaccination policy due to disability, the prevalence in the workplace of employees who have already been vaccinated and the amount of contact with others may impact accommodation options and undue hardship considerations. The first step, always, is to engage in the interactive process to identify accommodation options that do not constitute an undue hardship (which means significant difficult or expense in the ADA context). Importantly, “[e]mployers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.” The guidance doesn’t provide accommodation ideas, but a few might include allowing the use of an approved mask or other types of appropriate personal protective equipment, or reassignment to a position or department without co-worker/client/customer interaction.
- If a safety-based qualification standard, like a vaccination requirement, screens out a person with a disability, the employer must show that an unvaccinated employee would pose a direct threat before excluding them from the workplace. “Direct threat” means that the employee poses a significant risk of substantial harm to the health or safety of the individual or others at the workplace that cannot be eliminated or reduced by reasonable accommodation. It’s an affirmative defense with a high bar, and a full discussion is beyond the scope of this paper. In brief, a determination of direct threat requires a four-factor individualized assessment under existing ADA regulations and “would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
- If an employee can’t comply with a mandatory vaccination policy due to a religious belief or practice, believe them. Title VII defines “religion” broadly. An employer should not ask an employee for more information to support a religious accommodation request unless it has an “objective basis” for questioning the nature or sincerity of the employee’s belief or practice. Also, “undue hardship” in the Title VII context means more than a minimal burden on operation of the business. The EEOC has previously provided examples of burdens that are more than minimal, including “jeopardizing security or health.”[iii]
- An employer cannot automatically terminate an employee upon excluding them from the workplace. If an employee can’t get vaccinated for COVID due to disability or religious belief, and there is no accommodation possible, it is lawful to exclude the employee from the workplace. The EEOC is quick to point out, however, that employers must consider all other options first (remote work, leave of absence, and any other rights under other applicable laws).
- Administering a COVID vaccine or requiring proof of it does not implicate GINA, but pre-screening questions might. Broadly speaking, the Genetic Information Nondiscrimination Act of 2008, or GINA, prohibits employment discrimination based on genetic information. Pre-vaccination medical screening questions may elicit genetic information, including family medical history. To avoid implicating GINA, the EEOC recommends that employers warn employees not to provide genetic information as part of any required proof of vaccination.
Union Contracts. Mandatory vaccination may be a mandatory term and condition of employment that an employer arguably cannot unilaterally impose. Employers should review employer and employee rights under applicable collective bargaining agreements, and if the issue is not addressed, evaluate the breadth of the management rights provision. Employers should at least consider discussing vaccination now with any unions to reach a written memorandum of understanding.
Practical considerations.
When considering whether a mandatory vaccination policy makes sense, employers should consider all aspects of their particular situation, including but not limited to their industry; their geographic location(s); the amount of interaction with coworkers and the public required to do the work; and of course, employee concerns about the vaccine and potential reactions to a vaccine mandate at work. Here are a few others:
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Does such a policy fit the organizational culture? This is a big question that may require some deep reflection and meaningful input from a variety of stakeholders.
- Will a mandate apply to every employee, or just those in specific roles or areas? Employers could consider whether mandating vaccines on a smaller scale is an option.
- How will the organization respond to objections and refusals (unrelated to ADA/Title VII requests)? Employers should consider whether they will discharge strong, long-term performers who object to getting vaccinated.
Alternatives.
There are alternatives to mandating employee vaccination. Big, big caveat here: not every option is appropriate or desirable for every type of employer, and only time will tell whether these options age well.
- Don’t address it. This option leaves COVID vaccination completely up to employees without informing, encouraging, or communicating a position on vaccines. This option, more than any other, takes into account the full range of potential employee feelings and concerns about the COVID vaccine.
However, employee vaccination status will likely not disappear completely from the organization’s radar. For example, the CDC recently issued updated guidance eliminating quarantine periods for those who have been fully vaccinated, are within 3 months following receipt of the last dose in the series, and have remained asymptomatic since the COVID-19 exposure.[iv] If an employee experiences COVID exposure at work, their vaccination status may impact whether they should quarantine per CDC recommendations.
- Encourage vaccination. This option also leaves COVID vaccination up to employees but requires a more active approach that says: we want you to get vaccinated, employee. This is also the approach long-favored by the EEOC.
An easy, no-cost way to encourage vaccination is to simply share information (or links to information) from the CDC or other public health authorities with employees, such as the CDC’s “Frequently Asked Questions About Vaccination.”[v] Other options include assisting employees who need help navigating the vaccine appointment process and giving employees paid time off to attend vaccine appointments or recover from side effects after vaccination.
- Incentivize vaccination. Some employers are going the carrot-dangling route. Just last week, The Kroger Family of Companies, which employs nearly 500,000 employees, announced that it will pay $100 to all associates who receive the COVID-19 vaccine. What’s really interesting is Kroger’s plan B: employees who cannot receive the vaccine due to medical or religious reasons “will have the option of completing an educational health and safety course to receive the payment.”[vi] Other incentive options might include additional paid time off, subsidized parking, or other benefits that employees consider valuable.
Employers should remember that everything about COVID is a moving target. It is unclear whether the EEOC would deem vaccine incentives as wellness plans covered by the ADA. The EEOC may soon issue guidance that changes the permissible scope of vaccine incentives, prompted by a recent request for such guidance by business groups.
SHOULD WE MANDATE COVID VACCINATION FOR OUR EMPLOYEES?
Each employer should take stock of its situation (industry, workforce, level of interaction with the public, etc.) and do some organizational “soul-searching” to determine whether such a policy makes sense for the organization and its employees. If the conundrum persists, consult counsel.
*Helena Oroz is a member of Z&R’s Labor and Employment Group and an OSBA Certified Specialist in Labor and Employment Law. She regularly advises clients on all employment-related matters, including COVID-related compliance issues. If you have questions about COVID vaccination policies, contact Helena (hot@zrlaw.com) or any member of the Z&R Labor and Employment Group at (216) 696-4441.
[i] EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (Oct. 9, 2009), https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act(updated March 21, 2020).
[ii] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (updated Dec. 16, 2020).
[iii] EEOC, What You Should Know: Workplace Religious Accommodation (March 6, 2014), https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation, No. 4.
[iv] CDC, Interim Clinical Considerations for Use of mRNA COVID-19 Vaccines Currently Authorized in the United States, https://www.cdc.gov/vaccines/covid-19/info-by-product/clinical-considerations.html (updated Feb. 10, 2021).
[v] CDC, Frequently Asked Questions About Vaccination, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html (updated Jan. 25, 2021).
[vi] Kroger Announces New Vaccine Payment for All Associates (Feb. 5, 2021), http://ir.kroger.com/CorporateProfile/press-releases/press-release/2021/Kroger-Announces-New-Vaccine-Payment-for-All-Associates/default.aspx.