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As states in the U.S. administer COVID-19 vaccination plans, some employers are paying their employees or offering additional paid time off to take the vaccine. This serves as a way to incentivize the vaccine, in hopes of creating a safer, healthier work environment. But what about companies, especially health care organizations, requiring the shot. Can employers require the COVID-19 vaccination?
As of now, the CDC and DOH have not taken the position that employers must or should put in place mandatory COVID-19 vaccination policies. As with everything COVID-19 related, this could change at any time.
Nonetheless, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that confirms employers can mandate their employees to receive the COVID-19 vaccination as a condition to work onsite. The guidance determined that asking employees to get the vaccine does not constitute a medical examination; thus, it does not violate privacy concerns associated with typical protections found under Americans with Disabilities Act (ADA) and the Rehabilitation Act, or Title VII of the Civil Rights Act.
The EEOC went on to note that while these laws are still in place and applicable during the COVID-19 pandemic, “they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
This guidance, however, leaves open more questions than answers.
COVID-19 vaccines are currently available under an Emergency Use Authorization (EUA). The guidance recognizes that the vaccines are under an EUA and have not yet received final approval under FDA vaccine licensure. Notably, the guidance includes that under the EUA, the vaccination recipient must be advised that they have “the option to accept or refuse” the COVID-19 vaccine.
Aside from its reference to a single section in the FDA’s Fact Sheet for Healthcare Providers Administering Vaccine, the EEOC does not answer the question as to how to reconcile the obligation to advise vaccine recipients that they have a choice to get the vaccine with the right of employers to put in place a vaccine mandate. In the absence of further guidance, there is the potential that an employer who takes adverse employment action against an employee who refuses the vaccine as the EUA permits could expose themselves to potential liability. Until there is final FDA approval, the quandary whether the vaccine can be voluntary or mandatory for an employee remains questionable.
Where the employer decides to put a mandatory vaccine in place while the vaccine is under the EUA, they will have to put in place practices to address any employee who decides not to comply. For those employees, the employer must determine whether the employee is exempt from that policy.
Exemptions may exist due to a disability or a sincerely held religious belief. The employer must also consider any requests for an exemption from the policy that they may receive from a pregnant employee. In response to those requests, the employer will need to decide whether they can provide a reasonable accommodation to the employee that will allow them to continue working for the employer notwithstanding that they are not receiving the vaccine. That decision requires an analysis into whether the employer can put in place alternative safety measures that reduce or eliminate the direct threat of the unvaccinated employee to the health and safety of their co-workers, clients, and others entering the workplace.
Ultimately, employers must make accommodations as they are able. To help communicate policy and have successful discussions with employees who may ask for accommodations or an exemption, the EEOC has provided this resource from the Job Accommodation Network (JAN) website.
Of course, it may not be reasonable for an employer to accommodate an employee’s otherwise acceptable exemption, especially when it comes to work in a place like a long-term care facility for the at-risk elderly. As the guidance points out, if the employee is not vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation to be made, the employer can then exclude the employee from the workplace but not automatically terminate the employee. Again, the employer will need to consider any other rights under equal employment opportunity laws or other local, state and federal laws and statutes.
For those other employees who do not fall under an exemption, the employer will then need to decide if they are going to terminate the employee for failure to comply with a company mandate.
These uncertainties create a situation in which many employers, depending on the nature of their business, are electing to create incentive programs to encourage employees to obtain a COVID-19 vaccination rather than putting in place a mandate.
This is not a cut and dry situation. Employers should consider legal counsel before enacting policies requiring the vaccination and make decisions regarding employees on a case-by-case basis.
Attorney Loren Speziale collaborates with business owners and human resource professionals, providing legal guidance for a wide variety of operational and personnel matters.