Employers have had to navigate the ever-changing regulations and laws regarding employment during the COVID-19 pandemic. From ensuring safe workplaces, to complying with reporting regulations, to dealing with leaves of absence, employers have had to stay on top of COVID-19 regulations while continuing to run their businesses. Now, employers are facing yet another challenge – should they require their employees to get the COVID-19 vaccine? The question is not as clear cut as many may think.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers regarding COVID-19 vaccinations. The EEOC essentially said all employers can require mandatory vaccines as long as the employer: (a) allows employees to receive the vaccine from a third party that does not have a contract with the employer, and (b) follows accommodation requirements under the ADA and Title VII. But, there are still several precautions employers must consider.
EEOC’s Revised Guidelines
Under the revised guidelines, the EEOC is not treating the vaccination as a medical examination. Under the ADA, a vaccine is considered a medical examination and, therefore, any vaccine requirement must be job-related and consistent with business necessity. By stating the COVID-19 vaccination is not considered a medical examination, the EEOC’s guidelines allow for the vaccine to be mandated without having to show business necessity. The EEOC reasoned that if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
The EEOC does caution employers that although the administration of the vaccine is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. So, any employer mandating a vaccine must show that its pre-screening questions are job-related and consistent with business 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/himself or others. The guidelines do not specifically answer the question, “Can employers require all employees to be vaccinated for COVID-19 as a condition of employment or continued employment?” Instead, these guidelines provide guidance on issues surrounding exceptions employers must consider if they do adopt a vaccination policy.
Cal/OSHA has stated that workplace safety and health regulations in California require employers to take steps to protect workers exposed to infectious diseases like COVID-19, which is widespread in the community. We have yet to see additional guidance from Cal/OSHA or the CDC to help employers navigate these issues.
Which Employers Should Mandate the Vaccine
In determining whether to implement a vaccine policy for employees, employers should consider the nature of their business. The more likely it is that non-vaccinated employees put customers, fellow employees, or the general public at risk, the more compelling the case will be for a vaccination mandate. Organizations with at-risk workers such as hospitals and meat processing plants are expected to implement mandates. Office-based businesses or businesses that can rely on remote workers may make it easier to take a “personal choice” stance. Employers with unionized employees will need to address collective bargaining obligations before communicating any vaccination policies.
Religious Belief Exemption
Employees with “sincerely held religious beliefs” may claim an exemption to a vaccine mandate. However, personal beliefs, such as refusing the vaccine because the employee believes it is dangerous, do not constitute a sufficient claim for an exemption under the law. California employers are prohibited from discriminating against an employee whose religious beliefs conflict with a work rule, unless the employer proves it has explored any available reasonable alternative means of accommodating the religious belief but is unable to reasonably accommodate the religious belief “without undue hardship.” “Undue hardship” is defined as “an action requiring significant difficulty or expense,” including the impact of the accommodations on business operations.
An employer faced with a religious objection to mandatory vaccination should:
-Consider offering that employee an alternative position if one exists, or
-Consider placing conditions on the employee working onsite, such as requiring the employee to wear additional personal protective equipment at work, moving the employee’s workstation, a temporary reassignment, teleworking, submitting to testing when his/her health justifies it, or a leave of absence.
Allowing employees who refuse to be vaccinated to unconditionally perform their duties in the workplace may cause a California employer undue hardship by exposing the employer’s other employees, and its customers and vendors, to a risk of infection from the unvaccinated employees, as well as violating the employer’s duty to furnish a safe workplace. Thus, for employers who implement a mandatory vaccine policy, all claims of exemption should be carefully analyzed against the risk to other employees.
Risk to Employers Who Do Not Mandate the Vaccine
-If a mandatory vaccination policy is not imposed, employees may allege that their employer failed to provide a safe and healthy work environment, a requirement under OSHA.
-Employers may face claims that they did not take the appropriate safety precautions to protect its employees because it did not implement a vaccine policy.
Mandating vs. Encouraging
The general consensus is that it is better for employers to encourage and potentially incentivize employees to get the COVID-19 vaccine as opposed to making it mandatory.
If an employee has an adverse reaction to the vaccine, it could trigger a worker’s compensation claim (if mandated). The vaccine is currently available under emergency use, so it is unlikely that employers will require employees to get vaccinated during this period. It is more likely to see companies incentivize employees to get the vaccine. It will not engender good will towards a company if the employee is being mandated to do something. Therefore, employers should aim towards voluntary compliance.
There is also a push to insulate companies from liability. Because the employer is not administering the vaccine (a 3rd party pharmacy or health care provider is), any claims related to the administration of the vaccine would be funneled through worker’s compensation insurance as opposed to direct claims against the employer.
Alternatives to Mandate
The best option for employers who want their employees to get the vaccine is to strongly recommend/encourage getting the vaccine as opposed to requiring it. There is a lack of long-term health data on the vaccine, so it is important for employers to follow the guidance of public health professionals as they monitor the impacts and performance of the inoculation. There are many employers who currently require vaccines (such as flu shots), but those vaccines have a long history of data to track that we do not currently have with the COVID-19 vaccine. So what can employers do to encourage getting the vaccine?
-Require the vaccine in order to work from the office – employers would be required to make reasonable accommodations for workers who refuse to get vaccinated. This can include allowing employees to work from home.
-Advocate voluntary inoculation and run vaccination clinics at the workplace – employers should consider hosting a vaccine clinic at the workplace so that employees (a) do not have the extra burden of going to get the vaccine, and (b) are not penalized for taking time off to get the vaccine.
-Pay for the vaccine – employers should be prepared to pay for their employees to receive the vaccine (if the federal government does not pay for the entire cost).
-Provide an incentive to those employees who get vaccinated – employers can offer a small bonus or gift card to promote positivity around voluntarily getting vaccinated.
Employers considering implementing a vaccination policy should consult with employment counsel to ensure compliance with all legal requirements. You can read the EEOC’s guidance here (Section K addresses the vaccine).