Encouraging rather than mandating COVID-19 vaccinations may be an employer’s best option

By Joseph E. Gumina, Attorney, O’Neil, Cannon, Hollman, DeJong & Laing

Many employers are curious as to whether it is lawful to require that their employees become vaccinated with one of the available COVID-19 vaccines as a condition of employment. The short answer is “yes,” however, a policy mandating vaccinations for employees is fraught with many legal minefields. Most employers, after considering the legal challenges in mandating employee vaccinations, should consider, instead, a policy that encourages its employees to become vaccinated.

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently on December 16, 2020 updated its COVID-19 guidelines. In these updated guidelines, the EEOC has taken the position that an employer can require employees to become vaccinated during a pandemic, but the employer must allow for exemptions under either the Americans with Disabilities Act (“ADA”) or Title VII of the Civil Rights Act of 1964 (“Title VII”) if the employee has an underlying medical condition or voices an objection on religious grounds. Under such circumstances, an employer can only exclude an employee from the workplace if it can demonstrate that the unvaccinated employee would pose a direct threat of substantial harm to other employees that cannot be eliminated or reduced through a reasonable accommodation. While the EEOC recognizes that an employer may have the right to “exclude” an unvaccinated employee from the workplace, it is the EEOC’s position that the employer does not necessarily have the right to terminate the employee without first determining whether other EEO laws or other federal, state, or local authorities may make any termination unlawful.

Mandating that employees become vaccinated may prove to be complicated in trying to determine whether any particular employee actually qualifies for an exemption under the ADA or Title VII. Beyond trying to determine if an employee qualifies for an exemption, another significant challenge will be to figure out whether an unvaccinated person in the workplace actually poses an “undue safety burden” on other workers and whether there are any other precautions that the employer could take to minimize any safety risks (i.e., is there any accommodation that the employer can make to provide an unvaccinated employee the continued ability to work). In making these determinations, an employer would be required to conduct an individualized assessment of these factors for each employee claiming an exemption on disability or religious grounds.

In determining whether to mandate COVID-19 vaccinations, employers will also have to consider issues under the Occupational Safety and Health Act, the National Labor Relations Act, and the Genetic Information Nondiscrimination Act. Failure to do so, may spur claims under these laws as well.

In addition, there are other questions that employers will have to address in trying to implement and apply a mandatory vaccination policy. First, do individuals who claim to be anti-vaxxers have a legal standing to object to an employer mandated vaccination policy. Second, what about employees who simply just believe that the COVID-19 vaccinations are unsafe because they were approved under an Emergency Use Authorization rather than having been approved under a complete Food and Drug Administration approval process resulting in FDA licensure. Lastly, how would the employer address an employee who refuses to become vaccinated because the employee claims to have antibodies to the virus – does that fact give an employee a legitimate basis in which to refuse to become vaccinated. Most would take the position that the anti-vaxxers, those simply afraid of the vaccine, and those who claim other reasons to object to the vaccination (outside of the ADA and Title VII) may have a difficult position to object to an employer’s policy of mandatory vaccinations. However, these are all untested issues which translate into potential risk of claims for employers.

Finally, an employer that mandates COVID-19 vaccinations could be subject to worker’s compensation claims if the employee develops an injury or illness as an adverse reaction to such vaccinations. Just another cost for employers to consider before adopting a mandatory vaccination policy.

Given the legal complexities and challenges of a mandatory vaccination policy, the best advice for employers, at this time, is to strongly encourage employees to become vaccinated without actually mandating that employees become vaccinated. One way to do that is through an employer’s wellness plan by making such vaccinations available at the place of employment, during working time, to all employees at no cost. Hopefully, providing employees with easy access to the COVID-19 vaccinations at no cost will encourage employees to become vaccinated to help employers to keep their workplaces safe for all employees and visitors. Given that the continued rollout of the COVID-19 vaccines will take time before the vaccines will generally be available to everyone, now is the time for employers to consider the best way for its employees to become vaccinated against the COVID-19 virus.

Joseph E. Gumina leads O’Neil, Cannon, Hollman, DeJong & Laing’s Labor & Employment Practice Group and can be reached at 414-291-4715.