Now that the EEOC has issued guidance on COVID-19 vaccinations, what should employers know about vaccinations and whether to require them?
Whether employers should require employees to get vaccinated against COVID-19 depends on multiple considerations. At the time of this article, the Food and Drug Administration (FDA) had approved two vaccines for emergency use. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance, beginning at section K, under the Americans with Disabilities Act (ADA), and certain other laws, specific to COVID-19 vaccines—allowing employers to make initial, timely decisions that are right for their workplaces. Further guidance on these issues may be forthcoming from the EEOC and other agencies.
The EEOC guidance, first and foremost, confirms that employers may require employees to be vaccinated against COVID-19. However, employers are cautioned to determine in advance the health and safety rationale behind any decision to mandate the vaccine in order to ensure that they are on solid footing in this regard, taking into consideration the nature of the business or services the company provides, the nature and structure of the workplace, and employee duties and responsibilities. In addition, employers that mandate the vaccine will need to consider and evaluate any objections and requests for accommodation they receive from individual employees and applicants based on the employee’s or applicant’s disability or sincerely held religious beliefs. Where any such objection or request for accommodation is received, the employer must engage in the required analysis under the ADA, Title VII and related state and local laws to determine whether an accommodation or exception will be made with respect to the individual’s circumstance.
The nature of the business or services the company provides, the nature and structure of the workplace, and employee duties and responsibilities will also significantly impact decisions about whether to require rather than encourage the vaccine (or decisions to not indicate a preference). For example, health care employers are predicted to require the vaccine at a higher rate than other businesses because unvaccinated individuals in health care settings present more of a direct safety threat than in other business settings. Outside the health care industry, employers may decide for a multitude of reasons to encourage, rather than to require, the vaccine. Future directives from federal and state agencies, and requirements under state and local law, may also dictate or impact the decision of whether to require or simply encourage the vaccine.
If the employer decides that it will encourage instead of mandating the vaccine, the employer may wish to consider ways in which to incentivize employees to do so, without disadvantaging those in any protected class (such as employees with disabilities).
The federal Occupational Health and Safety Administration (OSHA) has yet to issue a standard or rule specific to COVID-19 vaccinations, but state OSHA rules may apply. Employers should also be mindful of their ongoing general duty under OSHA to provide a safe workplace and of any additional state OSHA regulations that may go further in requiring the vaccine to meet workplace safety obligations. Decisions regarding vaccine mandates (or the failure to require vaccines) may in addition trigger whistleblower complaints/reports to OSHA. Employers should monitor federal and state OSHA directives and prepare for conversations with their employees about why the vaccine is being required or not required. Employers should also prepare to investigate safety concerns that are brought to their attention.
Employers who decide to require the COVID-19 vaccine should consider the following issues and steps and are encouraged to consult with their legal counsel:
Implement a written policy.
The employer should implement a written policy that explains the legitimate safety and health rationale behind the decision to require the vaccine, details the requirement, and establishes a mechanism for employees and applicants for employment to raise objections and request accommodations based on disability or sincerely held religious belief. Supervisors, managers and those involved in the recruiting and hiring process should be well informed regarding the policy and to whom at the company they should refer employee and applicant objections and requests for accommodation related to the vaccine requirement. In terms of developing a mandatory vaccine policy, the policies and procedures that the employer (if a health care employer) may have in place related to a mandatory flu vaccine may be a helpful starting point. However, we strongly advise that employers have their legal counsel review the COVID-19 vaccine policies and procedures before distributing to employees.
Consider how the vaccine will be administered.
The employer should consider what role it will or should play in the administration of the vaccine. If an employer administers the vaccine directly (as may be the case for certain health care provider employers) or if an employer facilitates vaccination on site, additional obligations and compliance issues will be triggered under HIPAA, ERISA, the ADA and other laws. As an example, the EEOC guidance makes clear that pre-vaccination screening is likely to rise to the level of a medical examination under the ADA. Employers that are directly involved in the administration of the vaccine must be prepared to meet the additional compliance obligations. Any time spent by employees getting a required vaccination should be compensated if outside of normal working hours.
Consider state and federal OSHA directives, if any.
As indicated above, the federal OSHA has not yet issued a standard or rule specific to COVID-19 vaccinations, but state OSHA rules may apply. Employers should also monitor new federal and state OSHA directives and guidance.
Communicate what verification or proof of vaccination will be required.
The employer should consider what type of proof of vaccination will be required, especially for a two-dose vaccine like the two that have currently been approved for emergency use authorization. The employer should communicate the requirement to employees and applicants in advance and through its written policy. The employer should be careful to avoid seeking any information beyond a simple verification that the vaccine was received to avoid complications and additional obligations under the ADA and other laws.
Consider how objections (other than those based on disability or religion) will be handled.
Employers may expect that there will be employees and applicants who strongly object to a vaccine mandate, based on political or other personal beliefs unrelated to any disability or religious belief. Employers should discuss in advance the approach to, and who at the company will be involved in, making decisions related to such objections. It is advisable to involve internal or external counsel in any final decision related to individual employees and applicants.
Comply with requirements if your workforce is unionized.
Employers with a unionized workforce may have additional obligations before requiring a vaccine of its unionized employees. Be aware of and comply with these obligations.
Watch for federal, state and local laws and rules.
In addition to OSHA-related pronouncements, employers should watch for other federal, state and local laws and rules. States may pass legislation requiring the vaccination if voluntary vaccination rates do not reach the necessary or desired levels and/or may restrict instances where the vaccination may be required, etc.
Many of our clients are actively engaged in discussions as to the right decision for their operations and businesses and their workplaces. Our Employment & Labor team members are available to assist in the decision-making process and/or in the implementation of decisions related to the COVID-19 vaccine.
Contact your Fredrikson employment attorney or any member of our team for assistance.