By Abbey Moland, McGrath North
With the FDA’s issuance of an Emergency Use Authorization (EUA) of a COVID-19 vaccine on December 11, many U.S. employers, eager to safely transition employees back to work or transition workplaces back to normal, are considering implementing vaccine recommendations or mandates in the workplace. The fluidity of the pandemic has yielded yet another decision point for employers: Can employees be required to obtain a COVID-19 vaccine as a condition of employment?
At this point, the answer is generally, yes—although there are a number of caveats, open questions, and policy decisions to keep in mind as vaccines become more widely available and federal, state, and local agencies and corresponding legal issues continue to morph and take shape. Here is a look at some of the employment-related considerations with mandating a COVID-19 vaccine in the workplace.
Equal Employment Opportunity Commission (EEOC)
While the EEOC has not yet issued guidance specific to the COVID-19 vaccine, it has been down a similar road before. In response to the 2009 H1N1 (aka, swine flu), the EEOC published guidance called “Pandemic Preparedness for the Workplace.” As part of this older guidance, the EEOC concluded that even during a pandemic, employers have an obligation to consider exemptions for a vaccine mandate based on disabilities (under the Americans with Disabilities Act, or ADA) and religion (under Title VII of the 1964 Civil Rights Act, or Title VII). This same framework will likely apply to COVID-19 vaccine mandates.
Under the ADA, vaccinations are considered medical exams and in order to be made a mandatory condition of employment, they must be job related and consistent with business necessity or be necessitated by a direct threat in the workplace. While the EEOC has not addressed COVID-19 vaccines directly, guidance on COVID-19 testing issued in May 2020 indicates that COVID-19 presents a “direct threat” in the workplace; therefore, more extensive medical inquiries and controls can be implemented under the ADA. This guidance made clear that employers could perform certain COVID-19 testing (i.e., molecular tests, but not antibody tests) of employees without violating the ADA.
Notwithstanding the EEOC’s recognition of COVID-19 as a direct threat in the workplace, the ADA would still provide employees the ability to request an exemption from the vaccine as a reasonable accommodation if a disability prevents that employee from getting the vaccine. An employer is not required to provide a reasonable accommodation, however, if none is available, or if the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others that could not be mitigated through the reasonable accommodation.
Both the reasonable accommodation and undue hardship components of the ADA analysis hinge on individual circumstances related to things like the nature of the employee’s disability, the work conditions, and the ability to mitigate potential hazards through job modifications such as increased social distancing, PPE, telework, etc.
Employees working in high-risk environments or with high-risk populations (i.e., food service and food processing, healthcare, nursing homes, and schools) may have fewer options for accommodating vaccine exemptions, especially given the risk surrounding the efficacy of PPE measures in industries requiring constant exposure and face-to-face close contact.
Similar to the ADA, Title VII mandates that employers who plan to require a vaccine also provide an exemption where the employee maintains a “sincerely held religious belief” or observance that prevents them from taking the vaccine. This standard is fairly broad and encompasses more than traditional organized religions, but the protection would not extend to employees who seek an exemption due to political beliefs, personal objections to vaccinations, or safety-related concerns with the vaccine.
As in the case of the ADA, Title VII also allows employers to deny an employee’s request for an exemption to a mandatory vaccination if the employer can show an “undue hardship” by allowing the employee to forgo the vaccine. Again, this would hinge on the individual circumstances applicable to each case but would largely depend on the employer’s ability to provide alternative protections for the employee, the rest of its workforce, and, where necessary, members of the general public. While the EEOC’s H1N1 guidance provides some insight into how the EEOC is likely to view COVID-19 vaccine mandates in the workplace, there are still open questions.
Occupational Safety & Health Administration (OSHA)
While OSHA has also not yet provided specific COVID-19 vaccination guidance, its longstanding position regarding the flu and other vaccines indicates support for employer mandates so long as employees are “properly informed of the benefits of vaccinations.” The agency has caveated this by clarifying that an employee who refuses a vaccine due to a medical condition that the employee reasonably believes would cause serious illness or death may still be protected by Section 11(c) of the OSH Act, which governs whistleblower claims based on workplace health and safety.
Furthermore, it is worth noting that in its interim guidance issued in May 2020, OSHA had encouraged its own investigators to obtain the COVID-19 vaccination as soon as it becomes available. There is likewise widespread speculation that OSHA may look to apply the General Duty Clause, OSHA’s general citation standard, to issue citations to employers who fail to offer the COVID-19 vaccination to its workforce as an enhanced safety measure. As with the EEOC, additional guidance is expected to shed light on the direction of OSHA’s enforcement position on this topic.
Workers’ Compensation
On a similar note, what happens if an employer recommends or requires a COVID-19 vaccine for its employees and the employee is injured due to the vaccine?
Most likely, state workers’ compensation coverage would come into play to cover any physical injury, whether due to a vaccine side effect or other physical injury to the employee caused by the vaccine. This would generally be true in the case where an employer recommends, requires, pays for, or administers the COVID-19 vaccine at its worksite. On the flipside, workers’ compensation coverage would likely not apply in a scenario where an employee obtains a COVID-19 vaccine without the recommendation, mandate, or sponsorship from the employer.
Typically, subject to some state-specific exceptions, workers’ compensation serves as the exclusivity remedy for employees who sustain physical injuries within the course and scope of employment. While workers’ compensation laws may apply to shield employers from tort claims (i.e., personal-injury type claims) brought by employees who sustain physical injuries as a result of an employer-sponsored COVID-19 vaccine, these same laws may not preclude tort claims against third-party entities, such as the vaccine manufacturer.
National Labor Relations Board (NLRB)
Finally, there are labor considerations for both union and non-union employers in mandating a COVID-19 vaccine. For union employers, requiring a COVID-19 vaccine may be considered a mandatory subject of bargaining triggering an employer’s duty to bargain prior to implementing such a requirement. Employers should review any existing labor agreements for language that precludes or permits such a mandatory vaccination scheme. Second, non-union employers must also be mindful of how implementing a vaccine requirement could implicate Section 7 of the National Labor Relations Act (NLRA), which provides employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection.” Practically speaking, employees who join together to speak out for or against a mandatory vaccine requirement, who collectively create outside social media postings or other organized interoffice communications regarding the requirement, or simply discuss the employer-imposed requirement would be protected by federal labor law and, generally, cannot be subject to discipline or termination as a result of this conduct. Notwithstanding, even if employees band together in concerted activity under the NLRA, and cannot be disciplined for that concerted activity, they could still be disciplined for refusing to take the vaccine, or even permanently replaced if they choose to go out on a work stoppage.
While the current legal landscape suggests employers, especially those in certain high-essential industries, may be able to require employees to obtain a COVID-19 vaccine, there are open questions, potential public relations pitfalls, and employee morale issues with doing so. Until there is more guidance from the federal, state, and local level on this topic, and more widespread use and availability of the vaccine under the EUA and beyond, employers may want to consider promoting rather than requiring a vaccine as a condition of employment just as they would a flu vaccine. In other words, an employee would be limited to pursuing workers’ compensation benefits and cannot pursue tort claims against the employer absent a showing of willful or more serious conduct.
Abbey Moland is a partner in the Labor and Employment Group at McGrath North and sits on the Board of Directors of the firm. Her practice focuses on all aspects of employment and labor law, including wage and hour, employment discrimination litigation, developing employment policies, and collective bargaining. She works closely with HR managers, in-house counsel, and business leaders in assisting their businesses with COVID-19 issues and in developing long-term strategies and best practices to reduce business and legal risks. She can be reached at (402) 633-9566 or amoland@mcgrathnorth.com.
This story appears in 2020 Issue 6 of the Nebraska CPA Magazine.
