5 key considerations when implementing mandatory vaccination policies

As more and more employees return to the workplace, employers are faced with the challenge of keeping their workforce and clients safe and healthy. In addition to modifying employee health insurance coverage to make COVID-19 testing and treatment more accessible, employers are also introducing strategies focused on vaccinations, hygiene, and workplace modifications that help keep employees healthy and workplaces safe. One such strategy is to implement mandatory COVID-19 vaccination policies. To ensure that they comply with applicable laws, employers should weigh the following five considerations before instituting such policies.

Related: Employers: Tie health insurance rates to vaccination status?

1. The EEOC’s position

Private employers are currently grappling with whether or not to adopt and apply mandatory COVID-19 vaccination policies. Providing much-needed guidance on this issue, the federal Equal Employment Opportunity Commission (EEOC) has issued an updated technical assistance bulletin that addresses many of the pressing questions raised by employers regarding the COVID-19 vaccine.

In what is good news for employers, the EEOC’s position is that mandatory vaccination policies are not prevented by federal discrimination laws. Such policies are, of course, still subject to certain legally protected exceptions for employees with disabilities or sincerely held religious beliefs. Employers creating vaccination policies are advised to follow the EEOC’s guidance, summarized here, in addition to any applicable state or local laws.

2. Disability-related issues

An issue addressed by the EEOC’s technical assistance bulletin update is how to properly administer the COVID-19 vaccine policy in consideration of the Americans with Disabilities Act’s (ADA’s) prohibition of disability-related inquiries. Under the ADA, an employer is allowed to make disability-related inquiries and require medical examinations, but only if they are job-related and consistent with business necessity. Employers will need to follow this provision, in coordination with the CDC’s direction to health care providers that they make certain inquiries before administering a vaccine.

The EEOC acknowledges that pre-screening vaccination questions, as well as follow-up inquiries into why an employee did not receive a vaccination, qualify as disability-related inquiries. The EEOC advises employers that institute mandatory vaccination policies to be prepared to justify these pre-screening vaccination questions and follow-up inquiries under the ADA. To meet the ADA standard, “An employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Another disability-related issue addressed by this EEOC bulletin is the employer’s duty to engage in the interactive process with employees who are medically exempt from receiving the vaccine. While it is permissible to require vaccinations for employees who return to the workplace, an employer must be able to show that the unvaccinated employee would create a “significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.” To weigh this risk, employers must conduct an individualized assessment and consider the availability of accommodations for that employee. To do this properly, employers should consider the following four factors:

1. The duration of the risk
2. The nature and severity of potential harm
3. The likelihood that potential harm will occur
4. The imminence of potential harm.

Once it has been determined that an unvaccinated employee poses a direct threat to others on the premises, an employer must then attempt to accommodate that employee. If no reasonable accommodation can eliminate the risk or reduce it to an acceptable level, then — and only then — can the employer exclude that employee from the workplace.

The EEOC advises employers to consider all options before denying an accommodation request, including, but not limited to: permitting the employee to work remotely; transferring the employee to an open position for which the employee is qualified and for which a vaccination is not required, and allowing the employee to take a leave of absence.

3. The religious exemption

Title VII of the Civil Rights Act of 1964 requires employers to accommodate employees who have sincerely held religious beliefs that preclude vaccination unless doing so poses an undue hardship. The Title VII undue hardship standard is less onerous than the ADA standard — the employer needs only to show that providing the accommodation would impose more than a de minimis cost or burden. Nevertheless, employers are warned to proceed with caution before denying an accommodation on the grounds of undue hardship. Employers should also generally assume that an employee’s professed religious belief is sincere and only question their belief if there is an objective basis to do so.

4. Current legal challenges to mandatory policies

Recent cases in several states challenging the legality of employer vaccination mandates are currently making their way through the courts. Many raise the issue of vaccine safety in light of the current emergency use authorization (“EAU”) status of the Pfizer, Moderna, and Johnson & Johnson vaccines. EAU allows the FDA to sign off on the vaccines’ administration even though they have not yet received full approval.

In New Mexico, a correction officer is suing his supervisors and top county officials for forcing him to either get the COVID-19 vaccine or lose his job. He claims that because the vaccine is only in the emergency use stage, forcing him to be vaccinated would violate federal law.

Similarly, in North Carolina, a deputy sheriff sued the Durham County Sheriff’s Office after refusing to comply with its mandate that all deputies be vaccinated against the coronavirus. The former deputy sheriff lost his job after failing to schedule a vaccine appointment and refusing the vaccine despite being given almost three months to comply with the mandate. The deputy sheriff questioned the safety of the vaccine, and asked a federal court judge to declare the vaccination requirement unconstitutional and require that he be reinstated. The deputy sheriff has since dropped the lawsuit.

In the only matter to be fully adjudicated by the trial court, Bridges v. Houston Methodist Hospital, a federal court in Texas upheld a hospital system’s mandatory COVID-19 vaccination policy, which was challenged on the basis that vaccines against the coronavirus are experimental. The lawsuit was filed by 117 unvaccinated employees who were told to get vaccinated or lose their jobs. The employees argued that the hospital’s requirement violated public policy since the COVID-19 vaccines were distributed under the Food and Drug Administration’s (FDA’s) emergency use authorization rather than the FDA’s usual processes. The U.S. District Court judge for the Southern District of Texas dismissed the case, finding the employees’ claims to be “false” and “irrelevant.”

In a related matter, a New York hospitality employee has filed suit alleging that being forced by his employer to have the COVID-19 vaccine would violate his religious beliefs.

In addition to these legal challenges, lawmakers in at least 20 states have passed legislation or are considering measures that would prohibit businesses and state and local governments from placing restrictions on unvaccinated individuals.

Despite these challenges, the legality of mandatory vaccination policies is expected to be upheld. Full approval of the Pfizer vaccine is anticipated from the FAA by January 2022, if not before. Consequently, support for employer mandates is expected to grow. The large number of people who remain unvaccinated, along with a recent uptick in infection and death rates, may increase pressure on state and local lawmakers to implement vaccination requirement policies.

5. Model mandatory policy

Considering the strong support of public health policy experts for increased vaccination rates as well as anticipated court decisions in favor of mandatory vaccination policies, a growing number of private employers are likely to formulate and implement their own mandatory vaccination policies. When drafting such policies, employers are advised to:

• Highlight the benefits of the vaccine.
• Reference OSHA’s General Duty Clause, which requires employers to provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm….”
• Mention that a reasonable accommodation may be made for pregnant women, nursing mothers, employees with disabilities, and those employees who have a medical condition that prevents them from safe vaccination or who reject vaccination because of sincerely held religious beliefs.
• Refer them to the CDC’s “Myths and Facts About COVID-19 Vaccines” for more information.
• Offer incentives to encourage employees to get vaccinated.

When evaluating whether to implement a voluntary or mandatory vaccination policy, employers also need to consider a variety of other issues, including OSHA compliance, whether there is a unionized workforce subject to a collective bargaining agreement, whether employees who object to vaccinations are engaging in protected concerted activity, potential workers’ compensation claims (if an employee develops complications from a mandatory vaccine), and complying with wage and hour as well as leave laws to allow employees to get the vaccine.

Final thoughts

To date, most Americans have been getting vaccinated voluntarily. While this has resulted in slightly over 50% of the population being fully vaccinated, vaccination rates have started to decline precipitously, and infection rates are again on the rise. Therefore, relying on employees to get vaccinated voluntarily may not be sufficient for employers looking to maintain the health of their workers and their businesses from either a short or long-term perspective. However, the EEOC continues to issue updated guidance and support for employers in the fight against Covid-19, and a properly crafted mandatory Covid-19 vaccination policy is not only legal but is likely to become more and more common.

Vanessa Negrate (Vanessa_Negrete@gbtpa.com) is client counsel for Gallagher Bassett.

Read more: 

• Worker sues hospital employer: “Taking the vaccine will offend and otherwise harm the Holy Spirit”
• EEOC gives approval on limited incentives for employee vaccinations
• Virus surge upends plans for getting workers back to offices