NOW THAT COVID-19 VACCINATIONS ARE BECOMING AVAILABLE, CAN (OR SHOULD) EMPLOYERS MANDATE IMMUNIZATIONS?
As we anticipate that COVID-19 vaccinations will become readily available in the “not so distant” future, many employers are beginning to consider the question of whether they can (or should) implement mandatory policies requiring that employees get vaccinated. Guidelines recently issued by the Equal Employment Opportunity Commission (EEOC) seem to support the general proposition that employers can lawfully mandate that their employees get vaccinated for COVID-19. As with most legal propositions, however, there are important exceptions as well as a range of potential legal and other issues that employers will have to navigate if they elect to mandate COVID-19 vaccinations. Consideration of these issues is critical to an employer making an informed decision as to whether it should implement mandatory COVID-19 vaccinations.
Mandating vaccinations implicates a number of federal laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964 (Title VII) which provides certain religious protections. While the EEOC has indicated that the vaccination itself is not a medical examination as contemplated under the ADA, pre-vaccination medical screening questions are “disability-related” under the ADA (and may also elicit genetic information as contemplated under GINA). Consequently, if an employer requires an employee to receive the vaccine (administered by the employer or a third party with whom the employer contracts to administer the vaccine), the employer must demonstrate that any disability-related screening questions are “job-related and consistent with business necessity.” To do so, the employer must have a reasonable belief, supported by objective evidence, that an employee who does not answer the questions (and therefore does not receive the mandatory vaccine) poses a direct threat to the health or safety of the employee or others.
Further, even if the employee is deemed to pose a direct threat, the employer would then need to determine if the direct threat could be abated through providing a reasonable accommodation (absent undue hardship) to the employee. A similar obligation would arise where an employee declines the vaccination based upon a sincerely held religious belief, practice or observance.
In addition to the above issues, it is notable that FDA authorization for certain Covid-19 vaccines was through issuance of an emergency use authorization (EUA), not broader approval of such vaccines. According to the FDA, “[t]he EUA process is different than an FDA approval or clearance. Under the EUA, in an emergency, the FDA makes a product available to the public based on the best available evidence, without waiting for all evidence that would be needed for FDA approval or clearance.”[1] Particularly in the absence of FDA approval, some employees may have concerns about potential health risks associated with the vaccine itself. In the event that health issues eventually emerge in connection with Covid-19 vaccine, it is certainly conceivable that employees who claim injuries associated with the vaccine could seek to hold their employers liable.
There are also potential employee relations issues that may arise in the workplace irrespective of whether an employer mandates or does not mandate vaccinations. For example, some employees may raise safety concerns directed at employees who decline to get vaccinated. Others may voice objections to mandatory vaccinations based upon perceived health risks (not necessarily related to any health condition or disability). Concerted actions by employees relative to these issues may implicate legal protections under the National Labor Relations Act (NLRA) which generally protects employees from employer retaliation for engaging in concerted activities related to working conditions.
In sum, there are a number of legal and other potential issues that may arise for employers seeking to provide for a safe workplace during the Covid-19 pandemic. And these issues as well as agency guidance for understanding and addressing them are far from static. Employers should therefore carefully consider these issues when developing, implementing and modifying their policies and practices relating to the Covid-19 pandemic.
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[1] https://www.fda.gov/consumers/consumer-updates/understanding-regulatory-terminology-potential-preventions-and-treatments-covid-19