The Food and Drug Administration (“FDA”) has now recently approved, under an Emergency Use Authorization, a second vaccine for COVID 19. While it is not anticipated that the vaccines will be generally available until the second quarter of 2021, as the vaccines become readily available, as an employer, the question becomes, can I require my employees to take the vaccine in order to return to the workplace.
As of this writing, the Occupational Safety and Health Administration (“OSHA”) has not issued any specific guidance regarding the COVID 19 vaccine. However, the EEOC recently released its guidance with regard to employers’ requirement that employees obtain the COVID 19 vaccine. In assessing whether an employer can mandate a vaccination for it’s employees, we also look to the EEOC guidance on pandemic preparedness issued in 2009 as it provides a framework that the EEOC appears to have had in mind in issuing the COVID 19 guidance on vaccinations.
In its 2009 guidance on pandemic preparedness, the EEOC determined that employers could require employees to get the flu vaccine so long as employers provided reasonable accommodations to people with disabilities and those with religious objections, as required by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), respectively. We point out that the EEOC’s recent guidance on the COVID 19 vaccine makes no specific reference that employers can mandate the vaccination. However, from the context of the guidance, it does appear that employers can mandate the vaccinations.
With the foregoing in mind, we turn to whether an employee can opt out of a mandatory vaccination requirement from their employer. Under the ADA an employer can utilize a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).
Under the ADA, employers must provide a reasonable accommodation to any employee with a qualified disability that prevents them from receiving the vaccine. An employer is not required to provide a reasonable accommodation, however, if none is available, if the reasonable accommodation would present an undue hardship to the employer, or if, as provided above, the employee would pose a direct threat to the health or safety of others that could not be mitigated through the reasonable accommodation. Moreover, Title VII mandates employers that require vaccination as a condition of employment to also provide reasonable accommodations for employees with a sincerely held religious belief, practice, or observance that prevents them from taking the vaccine. This protection does not extend to nonreligious beliefs and would not exempt an employee who objects to vaccination due to political beliefs or other personal reasons, although such concerns might be protected under state law.
If an employee seeks a reasonable accommodation from taking the vaccination, it is recommended that the employer engage the employee in an interactive dialogue to determine whether a reasonable accommodation could be made that enables the employee to continue to perform their essential job functions without compromising the safety of other employees, patients or customers. Such reasonable accommodations could include, telework, moving the employees’ workstation, providing additional personal protective equipment or even a temporary leave of absence.
Lastly with regard to the EEOC and its guidance for the COVID 19 vaccine, if an employee cannot get vaccinated for COVID 19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean the employer may automatically terminate the worker.
In terms of OSHA, it has not yet issued guidance for the COVID 19 vaccine and so we look to guidance in 2009 through a Letter of Interpretation, which said that employers could require employees to be vaccinated against the seasonal flu. However, employees could refuse the vaccine due to a reasonable belief that they have a medical condition creating a real danger of serious illness or death. Such guidance could certainly be implemented by OSHA for a COVID 19 vaccine.
In addition, there is the possibility that under the General Duty Clause, which requires employers to furnish employees with a place of employment free from recognized hazards, OSHA may issue citations to employers that fail to offer COVID 19 vaccines. If OSHA takes such a stance, it could create a political backlash, but it is an issue to be monitored.
We also point out that each state has their own guidance and regulations that have to be taken into account when addressing whether to require your employees to be vaccinated. For instance, in Pennsylvania an employee may decline the influenza vaccination for any reason, so long as the employee was informed of the health risks beforehand. This may also apply to an employee who declines the COVID 19 vaccination.
Lastly, for employers with unionized workforces, employers should be mindful of the National Labor Relations Act, and specifically, the union contract governing the workplace. Specifically, mandating a vaccine for unionized workers may be an item that is subject to bargaining before implementation.
We also point out that employers could encourage employees through the use of incentives to receive the vaccination.
Whether to require employee vaccinations for COVID 19 is a rapidly developing issue which will face all employers. If you have any questions about how the vaccine for COVID 19 impacts your business or how to update your policies, please contact Russ Massey at Wright & O’Donnell, 610-940-4092.