A question that is top of mind as Covid-19 restrictions are being lifted nationwide, and employers begin to implement return to the office policies, is whether employers could, and should, impose a Covid-19 vaccination mandate on their employees. On the flip side, employees are asking: can my employer force me to get vaccinated, and what can they do if I refuse? Here’s what you need to know.
While mandatory vaccination policies may be controversial, they are not novel. Similar to other immunization requirements imposed on students attending school or healthcare personnel working in certain healthcare or residential facilities, employers can impose a vaccination mandate on their employees, barring some exceptions addressed below. From a practical standpoint, however, it is important that employers be open to having a conversation with their employees to address their concerns, rather than imposing a bright line, take-it-or-leave-it policy that does not take into consideration staff concerns or overall workforce morale.
Why employers may want to impose mandatory vaccination return to work policies
On May 13 2021, the Centers for Disease Control and Prevention (CDC) issued new guidance marking a significant turning point in the Covid-19 pandemic – fully vaccinated individuals no longer need to wear a face covering or socially distance in most settings. Several states (such as New York) followed suit adopting the CDC guidelines; other states (such as California) are delaying adoption of the CDC guidance until a later date.
For employers, no matter where your offices are physically located, there are clear advantages to having a vaccinated workforce. Under the federal Occupational Safety and Health Act (OSH Act), employers have a general duty to provide a safe and healthy work environment. Prior to the advent of Covid-19 vaccines, employers’ efforts to provide a safe and healthy work environment were primarily limited to face coverings, social distancing, screening and temperature checking, enhanced cleaning and disinfection protocols, and work from home policies. With three new vaccines to choose from, employers now have an additional weapon in their arsenal to prevent the exposure to and spread of Covid-19 in the workplace.
Are mandatory vaccination programs enforceable?
The answer appears to be yes for the safety and health reasons addressed above. Current guidance issued by the US Equal Employment Opportunity Commission (EEOC) suggests that employers may generally require Covid-19 vaccination, so long as they consider the need for any accommodations. The Americans with Disabilities Act (ADA) may require covered employers to provide a reasonable accommodation to qualified individuals with a disability, and Title VII of the Civil Rights Act of 1964 (Title VII) may require covered employers to reasonably accommodate qualified individuals’ sincerely held religious beliefs. An employee’s pregnancy or other underlying health conditions may also require accommodation depending on applicable law.
After receiving a request for an accommodation, employers should engage in an interactive dialogue with the employee to explore reasonable accommodations on a case-by-case basis. The failure to reasonably accommodate a qualified individual, or taking an adverse employment action against a qualified individual based on their refusal to take the vaccine, may expose the employer to a discrimination claim. Workforce morale considerations should also be contemplated and weighed by the employer alongside the health and safety considerations.
Importantly, employers do not need to provide a reasonable accommodation that would cause an ‘undue hardship’ on the employer, and the EEOC has taken the position that an unvaccinated employee could potentially be considered a ‘direct threat’ to health or safety in the workplace.
Accordingly, if a qualified individual cannot get vaccinated for Covid-19, and there is no reasonable accommodation possible, it would be legally permissible for the employer to exclude the employee from the workplace. This does not mean that employers may automatically terminate the employee; employers will also need to consider whether the employee has protections under other applicable laws, and the implications of termination on workplace morale.
Other important considerations
Regardless of whether employers choose to require or simply encourage vaccination, employers should consider the following when implementing a vaccination program:
Providing employees with information about the benefits of vaccination. Employers with employees hesitant about receiving a Covid-19 vaccine may find it beneficial to provide employees with information about the benefits of vaccination (or at least direct employees to where they can obtain such information). Understanding the benefits of vaccination can promote confidence in the decision to get vaccinated.
Continued applicability of other local and state infection control measures. While the CDC has substantially relaxed its face covering and social distancing guidelines for vaccinated individuals, states and municipalities may continue to enforce, and employers may continue to require adherence to, such guidelines.
Requiring proof of vaccination. Under federal law, employers may ask an employee about vaccination status or require proof of vaccination. However, employers should be careful not to ask follow-up questions that may elicit information about a disability, such as why an employee did not receive a vaccination, to avoid implicating the ADA.
Paid time off to get vaccinated for Covid-19. Through September 30 2021, employers covered by the Families First Coronavirus Response Act (FFCRA) are able to take advantage of tax credits for voluntarily providing employees with leave to get vaccinated for Covid-19. Additionally, paid leave may be required by state or local law. Employers with vaccination programs (particularly mandatory ones) should explain their practices with respect to compensating employees for time spent getting vaccinated.
Identify the process to request an accommodation. When implanting a mandatory vaccination program, employers should specify the process by which employees may request an accommodation, or direct employees to the employer’s accommodation policies.
Consider your specific industry and office set-up. Additionally, employers should consider whether a mandatory vaccination program is necessary given their specific industry, office set-up, and other alternatives (such as telework, transfers to other work areas, modifications of duties or physical distancing capabilities).
Employers and employees alike can, and should, expect further changes and guidance in the upcoming weeks and months to the requirements and guidelines concerning the Covid-19 vaccine, which are rapidly evolving. Indeed, the EEOC is currently considering whether the CDC’s updated guidance for fully vaccinated individuals impacts its current guidance. Employers should consult employment counsel prior to implementing any vaccination program and if an employee raises concerns about a vaccination requirement.
Marisa Sandler, employment lawyer and litigator at Tannenbaum Halpern Syracuse & Hirschtritt LLP. Maryann Stallone, a partner at the firm, also contributed.