Exceeding almost everyone’s expectations, President Donald Trump’s Operation Warp Speed has reportedly delivered fantastic news about at least two highly effective COVID-19 vaccines. One vaccine is from Moderna; the other is from Pfizer. These have been developed in a historically short period of time. The vaccines will be rolling out as early as this month, but priorities for access to the vaccines have not yet been finally determined. However, employers can anticipate that issues relating to mandatory vaccinations will soon begin to arise. These issues include whether to require COVID-19 vaccinations at all, and if so, on which employees to impose the requirement. Also, of course, questions will exist about how to handle employee objections to the requirement, as such objections are almost certain to occur. Below are some thoughts on these issues.
To Mandate or Not to Mandate?
Assuming vaccinations are not already being required by federal or state authorities (something that is quite likely in some areas and in certain industries, such as healthcare), in most cases the decision on whether to mandate COVID-19 vaccinations will generally be left to an employer’s discretion. Exceptions to the policy may be necessary, but unless your employees are represented by a union, an employer may require vaccination. If a union is involved, unilaterally implementing such a program may lead to a meritorious unfair labor practice charge, if the collective bargaining agreement does not already address such an issue. When in doubt, bargain. At the very least, provide notice and an opportunity for the union to request bargaining. However, in an “at will” employment scenario, an employer can make vaccination a condition of employment.
In deciding whether to mandate a COVID-19 vaccination for employees, an employer must balance the liberty interests of employees against the health benefits associated with the vaccination requirement. An employer should, of course, consider anything of relevance to the issue. One such factor is the workers’ environment. Some jobs may be considered at higher risk for getting and transmitting COVID-19 than others. For example, those working more closely together, such as in a meat packing or manufacturing facility, may be considered more at risk than those working in an office where social distancing is more easily managed. Similarly, a job requiring frequent interaction with customers, such as service workers in a restaurant, may also be considered at higher risk for contracting or transmitting the virus than are workers without that interaction requirement.
The risk that an employee will contract or transmit the disease must also be weighed against the risks associated with requiring the vaccination, such as the risk of potential liability for an employee that is harmed by the vaccine. In most states such an injury would likely be covered by the applicable workers’ compensation program, thereby limiting an employer’s liability to the remedy provided by the workers’ compensation statute. However, as has been seen with mandated COVID-19 testing programs, many enterprising plaintiffs’ attorneys have brought challenges to such limitations. Similar challenges may be expected in the “required vaccination” arena.
Other factors to consider include the potential for claims from customers and perhaps even your employees that they contracted the coronavirus from an unvaccinated employee. This potential risk increases in cases where other similar employers have already decided to mandate vaccines. Expectations on what a reasonable business should do can change over time, depending on changes in the industry.
Beyond the legal issues raised by a compulsory vaccination program, an employer should also consider that such a program can sometimes negatively impact employee morale. These morale issues may be outweighed by other factors, but should not be dismissed out of hand. As more is learned about COVID-19, the calculations as to what is reasonable and how to address the risks associated with this awful virus may also change.
Some Considerations for a Mandated COVID-19 Vaccination Program
If an employer decides that compulsory vaccinations are the way to go, the employer must also account for the typical anti-discrimination protections that can impact its compulsory vaccination program. Assuming an employer is covered by either Title VII or a similar state anti-discrimination statute, the employer should administer the program in a nondiscriminatory manner, consistently requiring all employees with similar jobs under similar circumstances to be vaccinated. If an employer is going to require only certain employees to be vaccinated, there must be a legitimate, nondiscriminatory reason justifying the differing treatment between positions.
Similarly, assuming that an employer is covered by Title VII, the Americans with Disabilities Act (ADA) or similar federal or state accommodation requirements, an employer must include in its compulsory vaccination program a mechanism to carefully consider and decide religious or disability-related objections to the program’s application to a specific employee.
Although the Equal Employment Opportunity Commission (EEOC) has not issued regulations or guidelines for compulsory COVID-19 vaccination programs under either Title VII or the ADA, precedent exists relating to compulsory vaccination programs that existed before the COVID-19 pandemic began. The most informative is likely the EEOC’s statements in its 2009 guidance entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which was updated March 21, 2020, following the onset of the current coronavirus pandemic. In that guidance, the EEOC included the following question and answer about compulsory flu shots:
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. *As of the date this document is being issued, there is no vaccine available for COVID-19.
(Bold in original; * in original)
In either a religious-objection scenario or a disability-related accommodation request scenario, an employer should engage in the ‘interactive process” with an employee to determine what accommodations, if any, are necessary and available. Do not pre-judge the result when a request is made. Rather, engage in the interactive process through communication with the employee. If the predicate for requiring a reasonable accommodation exists and a reasonable accommodation is feasible, the reasonable accommodation must be made unless providing the accommodation would create an “undue hardship” for the employer. The potential accommodations could include considering anything from the use of personal protective equipment to permitting the employee to work remotely, if feasible.
Under the ADA, an accommodation poses an “undue hardship” if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship. Note, however, that the EEOC has recognized that the undue hardship threshold under Title VII is a lower standard than that existing under the ADA. This may make it easier to meet, but an employer should not summarily dismiss religious objections to a COVID-19 vaccine requirement.
In sum, employers are in for a challenging time even as potentially lifesaving COVID-19 vaccines are rolled out to the public. The temptation to require all employees to take the vaccine (at least if they have not already survived the disease) will be great. Nonetheless, in considering whether to implement a compulsory vaccine program, an employer should compare the risks associated with implementation of such a program with one that only recommends that employees take the vaccine. The answer will not be the same for every employer. If a compulsory program is implemented, it should include recognition and appreciation for objections based on religious or medical/disability-related grounds. Failure to allow for such, or to handle these in a manner consistent with both Title VII and ADA obligations, may come back to haunt an employer even as the world begins to recover from the horrible effects of COVID-19.