Employers are currently evaluating whether to implement a mandatory COVID-19 vaccination program since two vaccines were recently approved and are in distribution. This evaluation process is even more critical with the onset of the flu season and the rising case numbers of coronavirus infections.
To start, an employer must determine if it needs to mandate the vaccine in their workplace by balancing the company’s ability to reduce or eliminate the spread of the virus through other administrative means available against avoiding the additional legal and operational risks associated with a mandatory program.
As employers evaluate their needs for a mandatory or voluntary program, they will need to consider the following questions:
- Reasonable Accommodation Exceptions: Can the employer respond appropriately to requests for accommodations?
- Equal Employment Opportunities: How will a mandatory program impact attraction and/or retention of talent?
- Compliance Concerns: Can a mandatory program be compliant through all its stages and not pose additional legal risk to the company?
- Labor Relations: Are all or part of the workforce unionized and subjected to a collective bargaining agreement and must the issue be subject to additional bargaining?
- Workers Compensation: Can an employee claim an injury from receiving a mandatory vaccination and filing a worker’s compensation claim?
- Employee Safety Concerns: Can an employee object to a vaccination for ‘safety reasons’ and is that employee protected under the Occupational Safety and Health Act (OSH Act) administered by the Occupational Safety and Health Administration (OSHA)? Can employees collectively object to a mandatory vaccination as a term or condition of employment and have protection under the National Labor Relations Act (NLRA)?
Mandatory vaccination programs
Generally, an employer can implement a mandatory vaccination program. This ability by the employer, however, is subject to reasonable accommodation obligations under federal, state, and local laws for those with disabilities who request a medical accommodation or those who have a bonafide religious belief against vaccinations.
An employee requesting an accommodation under the Americans with Disabilities Act (ADA) must first establish he/she has a covered disability. Note that there is a circuit split regarding whether sensitivity to vaccinations constitutes a disability.
If an employee does request an accommodation (not to receive a vaccination) and is in fact covered under the ADA, is that the end of the story for the employer and must it accommodate? An employer can defeat an accommodation if it can show special circumstances exist resulting in an undue hardship to them if the employee is accommodated and does not receive a vaccination. Accommodations for those eligible to receive one can include a different vaccine solution without the offending or triggering ingredient, a remote work option if the employee’s position allows, or possible changes in the employee’s duties so long as those changes are not considered ‘essential functions’ of the role.
An employee requesting a religious accommodation for exemption from an employer’s mandatory vaccination program must establish a bonafide religious belief for such a request to pass muster under Title VII. Personal or ethical objections are generally insufficient to meet this high threshold. If the requesting employee does meet the threshold of a bonafide religious belief, an employer could still deny the accommodation if it can establish that the lack of a vaccine to the employee poses an undue hardship to the workplace. Defined, an undue hardship evaluation under Title VII must establish harm to the employer, its employees or third parties that could result due to the accommodation. Note that there is a circuit split on whether ‘speculative harm’ is sufficient to establish undue hardship. One federal court has ruled in a speculative harm case that exemptions to a mandatory flu vaccination could place other vulnerable people at risk.
It also should be noted that several state legislatures have enacted laws surrounding mandatory vaccinations for school-aged children establishing differing standards. The legislation was premised on public health concerns and an overall concern for the protection of minors within their locales. In the case of COVID-19, it may be likely that some state and local legislatures will propose and pass restrictive legislation related to COVID-19 vaccinations and mandated programs.
Many legal experts have suggested that mandatory vaccination programs involving COVID-19 may be evaluated differently because we are still currently in the grip of the pandemic, which has led to large numbers of infections, significant numbers of COVID-19 fatalities, as well as considerable economic devastation for businesses across many industries. However, COVID-19 and the resulting pandemic could also be a matter of first impression discarding previous evaluation standards and precedents surrounding other mandatory programs.
In the past, the Equal Employment Opportunity Commission (EEOC) has generally been hostile to employer mandatory vaccination programs, while the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have been more accommodating to the issue.
However, during this recent COVID-19 pandemic, the EEOC has already acknowledged that it meets the ADA’s direct threat standard thereby, establishing that a COVID-19 infected person in the workplace poses a significant risk of substantial harm to others. This acknowledgement gives employers added measures it can use around testing that are generally prohibited to them by the ADA.
Experts are hesitant at this time to predict whether previous government standards will remain constant for an employer-based Covid-19 mandatory vaccination program.
How can employers prepare now?
It is believed that because two COVID-19 vaccines have recently been approved and are currently in distribution, both the state and federal authorities will issue more guidance and/or legislation around employer mandatory programs. Employers should begin to evaluate their specific workplace situation and determine what is the correct course of action for them by considering the following:
- Industry and workforce facilities: Employers should ask if a mandatory vaccination program is necessary for their industry, workforce, or workplace facilities. Is a program necessary when individuals can obtain their own vaccination? Is a positive outcome of reducing virus spread also possible by encouraging vaccination — emphasizing established CDC guidelines and/or working remote without mandating vaccinations?
- Outlying restrictions: If the employer deems a mandatory vaccination program necessary, is it company-wide or are there restrictions based on geography (high infection rates) or workplace locale where other alternatives (remote work or social distancing) cannot be enacted or maintained?
- Reevaluate accommodation processes: If a mandatory program is implemented, employers should evaluate their accommodation processes and staffing to avoid delays and additional legal risk. The employer may also need to accommodate employee requests with additional personal protective equipment (PPE), modification of job duties and/or use of several types of vaccine solutions. It is wise to look forward and prepare.
- Establish who is in charge: Employers should have one individual or department who is responsible and accountable for compliance around a mandatory vaccine program and its processes.
- Costs associated: Employers need to determine if they will provide the vaccines at little or no cost to employees to coincide with their choice of employee program.
Employers should begin their evaluations of whether to implement a mandatory program considering the industry, workforce and acceptable legal risk such a program might impose. Employers’ approach to handling the rollout of a mandatory COVID-19 vaccine program will ultimately make or break their relationship and trust with their workforce. With that in mind, employers must stay on top of their decision, remain flexible as the virus and the vaccines move forward and more importantly, employers must be conscious of how they communicate to their employees to maintain their trust and mitigate any potential risk.
Jody McLeod ([email protected]) is founder and principal at McLeod Legal Solutions. She is a licensed attorney with more than 30 years of legal experience in both the private and public sectors. Jody’s specialties include general employment law advice and counsel; third-party internal investigations; NLRA/NLRB matters; wage and hour compliance (advice and counsel as well as mitigation efforts); risk management; litigation; and litigation management specializing in employment discrimination and wage and hour class actions.