To Require or Not Require; The Thorny Issue of the COVID Vaccine for Employers

Please note that vaccine policy information is changing quickly. The article below represents the latest information as of the publication date.

With the approval of two COVID-19 vaccines and more approvals on the horizon, the question that's looming for employers is, "Can I make vaccination for employees mandatory?" The answer isn't simple. Essentially, in the US, the answer is yes, but there are a lot of caveats and considerations for businesses as they contemplate their position on the issue. Influencing factors include federal, state, and local guidance and, as this is an employer/employee issue, the individual company.

In December, guidance on the issue was issued by the EEOC. The guidance indicated that there is nothing in existing law that prevents an employer from requiring vaccination. The guidance also explored the Americans with Disabilities Act (ADA) and the limitations the ADA has on medical examinations. They determined that the vaccination itself does not meet the criteria of a "medical examination" for purposes of the ADA applicability. However, the guidance does indicate that although the administration of vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA's provision on disability-related inquiries.

For pre-vaccination screening questions to not be considered disability-related inquires under the ADA, the employer must show that these disability-related screening inquiries are "job-related and consistent with business necessity." And, in order to meet the standard of "job-related and consistent with business necessity," the employer would need to have a reasonable belief that the consequences of an employee not being questioned, and therefore not getting the vaccine, poses a "direct threat" to the health or safety of that employee or others.

The concept of direct threat has a very specific definition. A "direct threat" considers "nature and severity, "duration," "likelihood," and "imminence." As it relates to the COVID, the following apply:

• The duration of risk is as long as it takes for everyone to get vaccinated
• Then nature and severity is that those who get sick could get very sick and could die
• The likelihood is high due to the contagiousness of the disease or specific needs of contact on the job at a company
• The imminence is that if everyone gets thrust back into the workplace, the spread could happen quickly.

There are two perspectives on this issue: that of the employer and that of the employee. As it relates to the employer's perspective, there is an incentive to have folks vaccinated. When an employee spreads COVID, it has detrimental effects on other employees, employees' families, customers, and the company. For example, in the meat and poultry industry, there were shutdowns, more than 80 deaths, and significant cost to restart operations. And, it is widely believed that vaccination to achieve herd immunity is considered the best way to stop the spread of Covid-19.

The employee perspective may not be as straightforward, and employers need to consider employees' perspectives. In the most recent polling on the topic, about 40% of people are unsure about the vaccine. Additionally, a recent poll of about 2,000 New York City firefighters found that nearly 55 percent said they would not get a vaccine if offered one by their department, according to CNN. The reasons an employee might not be comfortable with getting the vaccine may be related to concern about vaccinations in general, religious reasons, or even a disability – like extreme allergies. Regardless, an employee who refuses a vaccine that was FDA approved under Emergency Use Authorization can request "reasonable accommodation."

According to the ADA, reasonable accommodation can be requested for any change to the application or hiring process, to the job, to the way the job is done, or the work environment that allows a person with a disability (or religious belief) who is qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities. Accommodations are considered "reasonable" if they do not create an undue hardship (defined under Title VII for religious beliefs) or a direct threat. Examples of reasonable accommodation related to COVID might be requiring the employee to wear a mask, work from home, work in an isolated place, or take leave under FLMA.

If an employer cannot provide reasonable accommodation and the employee cannot get vaccinated due to a disability or religious beliefs, the employer can exclude them from the workplace, but the employer needs to check all the boxes to ensure that the employer complies with applicable EEOC laws. Employers are cautioned that in the process of determining reasonable accommodation, they need to continue to abide by ADA and EEOC that uncover a disability.

There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the "job-related and consistent with business necessity" requirement:

• An employer has offered a vaccination to employees on a voluntary basis (questions must also be answered on a voluntary basis) No retaliation or consequences for employee refusal.
• If the employee gets a required vaccine from a non-employer third-party provider, "job-related and consistent with business necessity" criteria for questions does NOT apply.

If an employer determines they will require the vaccine and reasonable accommodation discussions exhausted, the employer can terminate the employee. When an employee feels they can do their job in a reasonable capacity, but the employer doesn't, they have the right to seek a remedy. It's a process that can end with the employee filing an EEOC complaint and/or suing the employer. Needless to say, the timing for companies to work through all of this with employees is challenging in pre-vaccination mode, until everyone is vaccinated or has reasonable accommodation.

While the Federal (CDC), State, and local guidelines provide recommendations that you should vaccinate, these are only recommendations and are not enforceable. It is up to the employer to consider their unique case in order to determine the right course of action for the business. Recent news shows just how much consideration companies are putting into their decision, with some holding off on a determination until there is a critical mass of like companies making their decision. But not all companies are hedging. Recent stories highlight companies that have decided they will require the vaccine.

Companies may also consider alternatives to vaccine mandates. For example, a robust education campaign, enhanced paid time off for the vaccination, and company leaders are taking the vaccine first. The EEOC guidance makes it clear that they view this as an employer-employee issue and that employers and employees need to talk it through. They are not trying to set up a situation where the employee is terminated for not getting the vaccine. There are many things you have to get to before you term someone. Companies need to carefully consider the implications and pay attention to what's happening in the news about the issue.

There are additional looming considerations that are playing out in the news relative to liability exposure for lawsuits related to COVID 19. While there hasn't been a settled case, there are suits in process, including a wrongful death lawsuit tied to COVID-19 infections in a Tyson pork processing plant, which has now moved to federal court. In the recent stimulus bill passed, a statement was removed that protected companies from COVID-19 related liability.

The Tyson case will likely set a precedent on what liabilities an employer may have and could be a significant influencer on whether or not companies choose to require vaccination. At the same time, President Biden has signed the "Executive Order on Protecting Health and Safety," which requires OSHA to publish the updated recommendations to protect workers from COVID-19. The order also instructs OSHA to consider whether a temporary emergency standard on coronavirus needs to be passed. While the issue remains much more shades of gray than it is black and white, companies need to carefully consider the implications and pay attention to the latest happenings in the news about the issue.