EMPLOYERS’ BIG DECISION – WHETHER TO MANDATE VACCINATION FOR EMPLOYEES

Now that three COVID-19 vaccines have finally received emergency use authorization (“EUA”) from the Federal Food & Drug Administration (“FDA”) and President Biden just announced that all eligible adults should be able to sign up for a vaccine appointment by May 1, the question employers have pondered for some time is ripe for decision: Can employers require their employees to get vaccinated? And the related questions: Can employers ask employees for proof of vaccination? Can employers prohibit employees from coming to the workplace without having been vaccinated? And can employers terminate employees who refuse to be vaccinated?

The short answer to all of the above is yes. But as with every employment decision, it comes with lots of caveats, careful navigation through the legal landscape, risk assessments, and employee morale considerations.

The Legal Landscape

Several federal laws govern these questions, including the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII of the Civil Rights Act, as well as parallel state laws. Policies mandating vaccines are generally upheld in the courts, provided appropriate exceptions are granted for disabilities and religious objections.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance with a special section on COVID-19 vaccinations of employees. The guidance states that an employer with a valid job-related reason can require an employee to receive a COVID-19 vaccine as a condition of returning to the workplace. The EEOC’s guidance makes clear that neither the administration of a vaccination nor the requirement that an employee show proof of vaccination constitute a “medical examination” or “disability-related inquiry,” and thus do not implicate the ADA.

Before excluding an employee from the workplace, however, “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.’” The EEOC advises employers to conduct an “individualized assessment” of four factors in determining whether a direct threat exists:  (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) and the imminence of the potential harm.  “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”  If an employer concludes an unvaccinated worker poses a direct threat, it still cannot exclude that employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”

Given everything we now know about COVID-19 – high transmissibility through indoor air, particularly if ventilation is poor; risk of severe illness and death; potential long-term health conditions from the disease; the disproportionately severe impact of COVID on the elderly, people of color, people in intergenerational housing, front line workers, and those with underlying health conditions – it is hard to imagine a court finding an unvaccinated person does not pose a direct threat in workplaces where workers interact with each other or the public.

Two important exceptions exist to the EEOC’s general guidance: (1) where an employee has a qualified medical disability under the ADA that would make receiving the vaccine unsafe; or (2) the employee holds a sincerely held religious objection to vaccination protected by Title VII.  Employers can prohibit an employee qualifying for a disability or religious exception from coming to the workplace but must determine whether a reasonable accommodation is possible before considering termination. A reasonable accommodation could allow employees to work remotely or, if feasible, enter the workplace with appropriate personal protective equipment. Given how successfully many employees have been able to work from home over the past year, employers will be hard-pressed to deny work from home as a reasonable accommodation where jobs can be performed remotely.

Aside from disability and religious issues, another obscure legal issue has entered the conversation around mandating vaccines. Currently, the three vaccines being distributed – Pfizer, Moderna, and Johnson & Johnson – are approved under an Emergency Use Authorization approval instead of regular, full approval by the FDA. The Federal Food, Drug, and Cosmetic Act requires the Secretary of Health and Human Services to ensure that individuals receiving a product under an EUA are informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” 21 U.S.C. 360bbb-3(e)(1)(A)(ii).

While the EUA statute seems at odds with the EEOC guidance, and at least one lawsuit has already been filed alleging a mandatory vaccine policy violates the statute, the EUA statute does not likely bar an employer from requiring vaccination. The FDA does not have direct authority over employers and it is doubtful the statute provides employees a private right of action. Interestingly, the EEOC guidance does not differentiate between vaccines that have received EUA versus full approval from the FDA, and the guidance was issued just after the Pfizer vaccine received EUA approval. Additionally, the statute requires those receiving the vaccine to be informed of their right to refuse the vaccine and the consequences of doing so. This is different than a guaranteed right of employment if an employee refuses the vaccine. Finally, the Centers for Disease Control (“CDC”) states that whether an employer may mandate COVID-19 vaccination is a matter of state or other applicable law, and references the disability and religious exceptions set forth in the EEOC guidelines. Employers can thus comply with both the EEOC guidelines and the EUA statute by informing employees who are required to receive the COVID-19 vaccine in order to come to work of their right to refuse the vaccine and any consequences of such refusal.  For those still concerned about the EUA status, it is likely that Pfizer and Moderna will receive full FDA approval in April, with Johnson and Johnson shortly thereafter, so this issue might be moot by the time any mandate would be in place.

Mandating vaccines raises other legal issues that employers must carefully navigate. The EEOC guidance indicates that employers can require proof of vaccination prior to allowing the employee to return to the workplace, but must avoid any other personal health questions about the employee or the employee’s family that are likely to elicit disability-related information and would trigger the ADA, or seek genetic information that could implicate Title II of GINA. As a practical matter, follow-up questions, such as why an employee has not been vaccinated, may elicit information protected under the ADA.

The Non-Legal Landscape

Despite the solid legal ground set forth above, surveys indicate that the vast majority of employers will NOT mandate vaccination for employees to return to the workplace. Some of the rationales articulated for this decision include:

• Vaccines are new and use novel technologies, causing fear and anxiety.– Response: Employers should in no way minimize the real fear and uncertainty that employees might have about these vaccines. They do involve new technology and have been created in record time. Fortunately, as vaccines become more widespread and employees see others receiving them safely and see how vaccines represent the path to return to normal, much of this fear will dissipate. Employers can do their part to counter fear and disinformation with trusted information and data to help educate their workers about the vaccines.
• COVID-19 has become a divisive political issue.– Response: Masks were and are also divisive among some people and some geographic areas in particular. Employers played an important role in bringing the public along and normalizing this safety measure. Again, trusted information, science, and data – without shaming or politicizing it – is the best way to educate and inform your employees. The public health interest – and the enormous importance of a vaccinated workforce to that public health interest – would seem to outweigh this concern.
• Vaccines themselves are a divisive issue, even pre-COVID-19. A strong contingent of Americans oppose vaccinations. Employees who oppose vaccinating their children may also object to a mandatory vaccination policy.– Response: Vaccine opposition is not a protected disability or religious objection. We are in an unprecedented, once-in-a-century public health crisis. The public health interest should be weighed against the inclination to avoid controversy. Employers should work to counter anti-vaccine sentiment with reputable science and transparent, trusted information and resources.
• Employees will not all have equal access to vaccines.– Response: Inequitable distribution of vaccines to underserved communities is a serious issue and must factor into any policy to mandate vaccines. Employees should not be subject to any such requirement until vaccines are widely available and access is no longer an issue. Employers can help to remove barriers by granting workers paid time off to get the vaccine and sharing information about how to sign up and access the vaccine where employees live.

Messaging is Key

Whether employers choose to mandate vaccination or instead encourage, and even incentivize employees to get the vaccine, thoughtful and empathetic messaging is critical. We have learned over the past year how divisive the most basic public health advice can be, and how shaming those who resist that advice can backfire. Instead, explain the rationale behind your policy without patronizing or disrespecting anyone. Combat disinformation by presenting health information and data in an accessible way. Know your audience, listen to people’s concerns, understand the biases at play, and tailor communication accordingly. You may need to consider different messaging within your organization, depending on employee roles, geography, or other factors. Avoid using provocative terms like “anti-vaxxer.” Frame the issue in a positive, hopeful way.

Employers can play an important role in ending this public health crisis and returning to normal by promoting and even mandating vaccines with careful navigation of the legal issues and providing reasonable accommodation when required. Messaging with empathy, transparency, and clear, trusted information will be key.

To learn more, please visit the State of Minnesota’s COVID-19 Vaccine Employer Toolkit website.

Susan E. Ellingstad
Partner
seellingstad@locklaw.com
(612) 596-4074