December 21, 2020Client Alert

What to Consider When Considering Mandatory/Incentive Based COVID-19 Vaccination Programs

With COVID-19 vaccinations now underway at healthcare facilities across the country, employers across all industries are asking themselves whether they can mandate COVID-19 vaccines, and if so, whether they should? Last week, the EEOC updated its COVID-19 Technical Assistance guidance to help employers address those questions under the Americans with Disabilities Act (ADA) and other federal EEO laws. An employer’s analysis does not end with the EEOC guidance, however. Employers must be mindful of existing state laws, pending state legislation addressing vaccination, and other practical considerations. This alert discusses a broad range of considerations all employers should make when implementing COVID-19 immunization programs, starting with the new EEOC guidance.

EEOC Guidance

Generally speaking, the EEOC gives employers the greenlight to mandate COVID-19 vaccinations. But not without significant limitations. Here are the key pitfalls employers should consider before implementing a vaccination program or mandate:

1.   Pre-vaccination medical screening questions may implicate the ADA’s provision on disability-related inquiries.

Prior to vaccine administration, the nurse giving the vaccine will ask the patient certain questions to ensure it safe to administer the vaccine and avoid medical complications. The ADA limits disability-related inquires by employers. According to the EEOC guidance, these pre-vaccination medical screening questions are disability-related inquires because they are likely to elicit information about a disability. Thus, employers that require an employee to receive a vaccination administered by the employer or a third-party it contracts with, must show the screening questions are “job-related and consistent with business necessity.” In other words, the employer must have “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.”

The EEOC notes two ways around meeting the “job-related and consistent with business necessity” requirement. First, the employer may sponsor a voluntary vaccination program where employees choose whether they want to be vaccinated and choose whether to answer screening questions. Second, employers that want to mandate vaccination may design its program so that employees choose where to obtain the vaccine, then provide proof of immunization to the employer.

2.   The ADA’s safety-based qualification standards and interactive process requirements still apply.

Employees concerned about receiving the vaccination because of a medical condition may request exemption from mandated vaccine programs as an accommodation under the ADA. When fielding these requests, employers should first consider whether an unvaccinated employee would pose a “direct threat to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation.” In other words, the employer must determine whether an unvaccinated individual is likely to expose others to the virus at the worksite. When making this determination, the EEOC encourages employers to conduct an individual assessment using the following factors: (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. This analysis will produce different results based upon the population of employees, geographical location, customers and clientele served, ages and health risks of those present at the workplace, and other factors.

Employers who conclude an employee would pose a direct threat to others must then assess whether it can reduce the threat to an acceptable level by providing an accommodation like masks or other PPE, enclosed office spaces, devices that monitor physical distancing (such as this one). If the direct threat cannot be reduced, employers may preclude the employee from being physically present at the worksite, but may not terminate the employee, unless the employee cannot be reasonably accommodated with remote work or medical leave.

3.   Title VII’s sincerely held religious practice or belief and pregnancy accommodation requirements still apply.

Some employees may object to receiving the vaccination citing their religious beliefs or pregnancy – protected classifications under Title VII of the federal civil rights law. With respect to religious objections, the EEOC guidance provides that in the case of mandatory vaccination programs, the employer must provide a reasonable accommodation if the employee notifies it that receiving the vaccination is against the employee’s religious belief, practice, or observance, unless it would pose an undue hardship. The “undue hardship” standard in this context is less stringent than under the ADA, and means “more than a de minimis cost or burden on the employer.” If the employee cannot be vaccinated and no reasonable accommodation is available, the employer may exclude the employee from the workplace.

The EEOC guidance reminds employers that its definition of “religion” is much broader than what many recognize as religions, and “protects beliefs, practices, and observances with which the employer may be unfamiliar.” Separate, long-standing EEOC guidance on Religious Discrimination in the Workplace explains that “religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Religious beliefs typically concern “‘ultimate ideas’ about ‘life, purpose, and death,’” but not “mere personal preferences” or “social, political, or economic philosophies.” Importantly, employers need not simply grant all religious accommodation requests. The EEOC’s COVID-19 guidance provides that employers with an objective basis for questioning the employee’s stated belief may request additional supporting information. Evidence, such as an employee’s prior flu vaccinations, or prior statements as to the basis for objection, that were not based upon deeply held beliefs, may provided a basis for rejecting such refusal to vaccinate.

As for pregnancy-related accommodation requests, the vaccine is not presently approved for use in pregnant women. Employers should provide pregnant employees who have not been vaccinated the same accommodations they provide other non-disabled employees who object to receiving the vaccine until they are able to be vaccinated.

Other Considerations

Before instituting a vaccine program, employers should consider other factors as well. Here are key tips:

  • Pending Legislation. Employers should monitor legislation in their states, as state legislatures begin to weigh in on the issue. For example, Wisconsin’s Speaker of the State Assembly has proposed a bill that would prohibit Wisconsin employers from requiring their employees to receive a COVID-19 vaccination as a condition of employment. Other states are considering vaccination mandates.
  • State Laws Impacting Vaccinations. Employers considering mandatory vaccination programs should consult with legal counsel concerning state-specific laws and pending legislation that may affect the legality of mandatory programs before implementing one. State law anti-discrimination and other protections may be broader than federal protections.
  • Emergency Use Authorization (EUA) Status. Employers should consider whether to delay mandatory programs until vaccines receive full FDA approval. Mandating employees to take something that has not been finally approved by the FDA may be subject to challenge or affect employer liability in the event of an adverse reaction to the vaccine. Early reports indicate a few cases of anaphylactic allergic reactions to the Pfizer vaccine. Emerging reports will prompt employees to take a wait and see approach, so employers considering a mandate may want to delay announcement and start with a voluntary policy.
  • Worker’s Compensation. Employers should also consider risks associated with workers’ compensation claims arising from mandatory vaccinations. If an employee has an adverse reaction to the vaccine, it will likely be a covered loss.
  • Employee Refusals. November polls indicated only 60% of the population intended to take the vaccine. However, in December that number reportedly has increased. But many still say they will wait a bit to see the reactions or to have more choices. Employers must be prepared to address what they will do if a large percentage of their workforce refuses to comply with a vaccine requirement. Practically speaking, it may not be feasible to accommodate or terminate 40% of the workforce. Picking and choosing who to terminate and who to exempt could lead to discrimination claims. Such distinctions will need to be risk based and/or triggered by legal requirements (such as religious, disability or pregnancy accommodations).  
  • Union Contracts And Section 7 Rights. Union employers should review their relevant union contracts. In some cases, mandatory vaccination programs may be a mandatory subject of bargaining. Employers without a unionized workforce should also be mindful of their employee’s Section 7 rights under the National Labor Relations Act (or state equivalent). Such laws protect employees engaging in “concerted activity” even without a union.
  • Two Dose Vs. Single Dose Vaccine. The Pfizer and Moderna vaccines both require two shots, spaced weeks apart. Will employees who have a reaction to the first dose, be required to get the second dose?  Will that experience form a basis for concerted activity by other employees to refuse to vaccinate?  The Johnson & Johnson vaccination will be a single dose, but likely will not be approved under an EUA until late January.
  • Masks and PPE. Scientists do not yet know whether COVID-19 vaccines prevent transmission of the disease. Therefore, until there is more certainty, employers with unvaccinated employees, (or customers, patients or other visitors) should still require employees and guests to continue masking and social distancing practices.
  • Side Effects and Delayed Immunity. Recipients of the vaccine may experience symptoms similar to COVID-19 symptoms. These symptoms do not signal infection or contagiousness from the vaccine itself. However, because recipients do not enjoy full immunity for a period of weeks after the final injection, it is possible post-vaccine symptoms could signal infection caused by the employee’s exposure to an infected individual. Because it may not be possible to distinguish between symptoms caused by the vaccine from symptoms caused by the employee’s exposure, employers should treat symptomatic employees under their regular protocols. Employers may also consider requiring employees to work remotely or offering paid time off after receipt of the vaccination to reduce the likelihood of having to quarantine coworkers who were in close contact with the symptomatic employee.
  • Incentives. Employers leaning toward voluntary programs may consider offering incentives to employees to increase participation. For example, an employer may offer employees paid time off to take the vaccine and recover from any symptoms. Paid time off may incentivize employees to vaccinate, while simultaneously reducing the risk of symptomatic employees coming to work, leading to the need to quarantine other employees. When offering incentives, employers should take care not to discriminate against, identify or vilify employees who are not eligible, because of their disability or religion.

In short, employers considering whether to implement a COVID-19 vaccination program should carefully design their program to account for the realities of its workplace, industry, and the law. There is no one-size fits all plan. What works for healthcare provider or public employer may be very different than what works for a financial services provider, for example. For additional information, contact your Michael Best attorney.

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