As we enter 2021 full of hope with the distribution of two U.S. Food and Drug Administration emergency use vaccines for COVID-19 and one more on the way, employers can look forward to reopening their doors. However, employers now face a new challenge, as they grapple with deciding whether to require employee vaccinations.
The following provides an outline of relevant U.S. Equal Employment Opportunity Commission updates, and corresponding best practices for employers.
The EEOC's Updated Guidelines Surprisingly Allow Employers to Mandate Employees Be Vaccinated — With Exemptions
The EEOC recently released long-awaited updated guidelines indicating that employers can mandate vaccinations in furtherance of creating a safe workplace. The EEOC guidelines state that an employer may require an employee to receive a vaccination, either from the employer or a third party with whom the employer contracts to administer a vaccine.
COVID-19 is not the first serious pandemic that the U.S. has endured — e.g., Spanish Flu, smallpox, measles, polio, H1N1, HIV/AIDS, and H2N2. The past pandemics involved the distribution of vaccines, but not until COVID-19 has the EEOC published guidelines that pave the way for employer mandated vaccinations.
Indeed, less than one year ago — prior to the pandemic — any conduct that might be construed as infringing on an employee's right to privacy or right to religious freedom was prohibited with limited exceptions.
While many employers already provide employees with the opportunity to receive a flu vaccination, and in many cases mandate it in industries such as health and education, the notion that a private-sector employer could question employees regarding the presence of any COVID-19 symptoms, take an employee's temperature or even require employees to wear sensors that track social distancing in real time was unheard of a year ago and would have resulted in a legal challenge.
After years of restrictions placed on employers by federal and state agencies for the purpose of protecting employees in the workplace from discriminatory practices, the EEOC's recent updated guidelines granting employers permission to mandate vaccinations for employees — with exemptions for religious and certain medical conditions — as a condition of employment is a complete 180 degree change.
The current pandemic has infected close to 22 million and killed more than 365,000 in the U.S. alone, making safety of workers a priority for everyone in our new normal. In light of these unprecedented times, over the past nine months the EEOC has gradually loosened the Americans with Disabilities Act restrictions regarding what an employer can and cannot ask about an employee's health as it relates to COVID-19.
The EEOC's updated guidelines indicate that prioritizing the safety of the majority with mandatory vaccination policies — with the two key medical and religious exceptions — take priority over an individual's personal choice not to be vaccinated and employment preferences.
If one needs any justification for the EEOC's current pandemic position, one simply has to review the ADA and find the definition of "direct threat standard." A direct threat is "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."[1]
Not all pandemics constitute a direct threat. In fact, there are four factors that must be satisfied for a pandemic to be a threat: (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) the imminence of the potential harm. Any reasonable accommodations that would eliminate the risk of harm or reduce it to an acceptable level must also be considered.[2]
In determining whether COVID-19 constitutes a direct threat, the EEOC relied upon the U.S. Centers for Disease Control and Prevention's warning that COVID-19 is a virus that is highly transmissible, and that may cause severe illness and possibly death. Under those parameters, COVID-19 meets the definition of a direct threat and as such, employers are allowed to require that all employees be vaccinated before returning to work.
Would a Vaccination Policy Pass a Legal Challenge in Court?
The answer to whether it is constitutional to mandate vaccinations may be found in a 115-year-old U.S. Supreme Court case, Jacobson v. Massachusetts.[3] In Jacobson, there was a smallpox epidemic in Cambridge, Massachusetts. The Cambridge Board of Health required vaccination by all residents against smallpox.
Henning Jacobson, a pastor of a Swedish Evangelical Lutheran Church in Cambridge, refused to comply with the Board of Health's vaccination order. He was charged with violating the law, and Jacobson plead not guilty. Jacobson was convicted and fined $5. He appealed his case to the U.S. Supreme Court contending that he had a right under the free exercise clause of the First Amendment to avoid the mandatory vaccination law.
The court upheld the state's right to pass a law to protect the health and safety of the public, stating "the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases."[4] The court further explained that it balanced the common good of the community against the individual's right to choose to be vaccinated.
The court reasoned:
The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.[5]
The court emphasized that government officials were acting out of necessity as smallpox was prevalent and increasing at Cambridge, and it was this emergency situation that justified the government's official action in mandating all residents have a smallpox vaccination.
Although Jacobson dealt with the issue of state mandated vaccination policies, the legal framework lends support to employers who seek to protect their employees with a mandatory vaccination policy.
The Exemptions
State action related to mandatory vaccinations similar to the one in Jacobson will take several months — at a minimum — and many employers looking to resume business operations at close to prepandemic levels will likely strongly consider implementing such a requirement as soon as reasonably possible. The EEOC's recent guidelines are helpful in that they provide employers with the ability to do so while outlining two clear exemptions for employees.
First, an employee may be exempt from compliance with a mandatory vaccination policy if they have a qualifying disability under the ADA that prevents them from safely receiving the vaccine.
Second, an employee may also be exempt from compliance with a mandatory vaccination policy if they have a sincerely held religious practice or belief, unless granting the employee the exemption would pose an undue hardship on the employer under Title VII of the Civil Rights Act, which generally prohibits employment discrimination against an employee because of an individual's religion.
It is also important to note that courts have broadly interpreted religion in the context of required vaccination policies. To be exempt for a religious belief, employees must establish a sincerely held religious belief, and that not having the vaccination does not impose an undue hardship on the employer. Courts have interpreted undue burden under Title VII to mean more-than-a-de-minimis, or trivial cost to the employer.
A sincerely held religious belief does not include a personal or political belief. This belief must be honestly held, and can be new, uncommon and separate from a formal religious sect, group or denomination.
Vaccinations Are Not a Medical Examination
Importantly, the EEOC clarified that requiring a vaccination in and of itself is not a medical examination under the ADA. The vaccine is not "a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual's physical or mental impairments or health." Because the employer is not seeking information about an individual's impairments or current health status, it is deemed acceptable under this current guidance.
Prescreening Questions Should Be Job-Related
The EEOC warned that employers should be mindful of prescreening vaccination questions that may implicate the ADA's provision on disability-related inquiries. Notably, the EEOC states that if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA "job-related and consistent with business necessity" restrictions on disability-related inquiries would not apply to the prevaccination medical screening questions.
Proof of Receipt
The EEOC also confirmed that employers asking employees for proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. Employers should be mindful that asking follow-up questions regarding why an employee did not receive a vaccination may elicit information about a disability and would implicate the ADA's prohibition against disability related inquires. To avoid implicating the ADA and to assure the employee that their right to privacy is entirely respected, an employer should assure its' employees that it is not seeking any private medical information as part of the proof of a COVID-19 vaccination.
Termination for Refusal Is Permissible
The EEOC expressly confirmed that if vaccination for COVID-19 by an employee is untenable because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.
Best Practices for Employers
With the EEOC guidance in place, below is a brief list of best practices employers should consider for a mandatory vaccination policy.
1. Employers should consider the policy implications and impact on employee morale or potential public backlash. Employers should also consider whether a mandatory vaccination policy is truly necessary for all employees in all departments or those who may be more at risk than others.
2. Employers should consider the risks associated with not mandating vaccinations prior to returning to work. The employer could risk other employees' exposure at the business and potential violations under Occupational Safety and Health Administration rules for not having a safe working environment. There is also the risk of the business being responsible for COVID-19 infections within the community. Further, if the employer does not require vaccinations, then the other safety measures must remain in place: social distancing, mask wearing, health questions and temperature checks.
3. Employers should consider the financial burden, including all costs involved, and determine whether it is possible to provide the vaccinations at no or little cost to the employee. Employers should consider if it makes financial sense to engage a third party to provide the vaccine on site or off site. Employers should consider making vaccinations available on site at times convenient to employees during their normal working hours, and factor the cost and lack of productivity into the analysis.
4. Employers should also educate their staff that, although everyone has received vaccinations, the COVID-19 procedures remain in place — social distancing, mask wearing, sanitizing work areas — until the CDC or a state and local public health department provides otherwise.
5. Employers should distribute a written policy outlining the employer's business justification for mandating vaccinations. It will be important to explain the purpose of the limited prescreening questions and consequences for employees who refuse vaccination and do not fall within one of the exemptions. The employer must assure that no retaliation ensues.
6. Employers should also include the religious and medical exemption and expressly state that it will engage in an interactive process with employees who refuse to take the vaccination to determine if a reasonable accommodation is possible. When an employee holds a sincere religious belief the employer must then explain to the' employee how not being vaccinated is unduly burdensome to the employer and its business. This burden must be more than minimal.
7. Employers should consider the administrative burden as it will need to document all such efforts to engage in the interactive process, including forms for employees to request an exemption, as well as the burden of distribution and tracking. Employers must be mindful that prescreening questions may elicit information about a medical condition or disability, and must be job-related and consistent with business necessity. Employers must keep all medical records confidential for individuals who receive a vaccine — regardless of whether the employee received the vaccine at work or whether the employee provides proof of compliance.
8. Employers should consider the alternatives to vaccinations for those who refuse. An employer may impose other infection control measures, such as additional personal protective equipment, change in workstation, change in assignment or remote work if granting a vaccination exemption.
9. Employers should consider termination carefully, and determine if any other rights apply under the EEO laws or other federal, state and local authorities that may provide further guidance. Keep in mind that employers risk a retaliation claim when an employee asserts one of the exemptions and challenges the unduly burdensome defense.
10. Employers should follow state and local municipality positions on mandating vaccines. It is very likely that some states and/or municipalities will mandate vaccinations, removing the decision from the employer.
Ultimately, employers will need to proceed with caution, and should always confirm that both the policies and practices are legal before deciding whether to take any adverse action against an employee for refusing to comply with a vaccine policy. Employers should be ready to adjust and refine their policies and practices as the legal landscape related to COVID-19 continues to evolve — possibly considerably — in the new year.
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[1] See 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r).
[2] Id.
[3] 197 US 11 (1905)
[4] 197 U.S. at 34.
[5] Id. at 26.