The first doses of COVID-19 vaccines arrived in California in mid-December. Although vaccines will not widely be available to most employees for many months, it is not too early for employers to start planning.
It will be tempting for employers to require their employees to be vaccinated, and doing so makes sense in some industries (e.g., health care and community homes for the elderly or ill). However, mandating COVID-19 vaccines presents a host of legal and practical challenges. Employers should consider these issues carefully before implementing a mandatory vaccine policy.
The Law Generally Permits Mandatory COVID-19 Vaccines
Because of the devastating nature of COVID-19, employers generally have more latitude to require COVID vaccines than regular flu or other vaccines. The federal Equal Employment Opportunity Commission (“EEOC”) stated in recent guidance that at-will employers may require employees to be vaccinated as a condition of continuing employment and returning to work onsite (as opposed to teleworking), subject to requests for reasonable accommodation. Employers with unions may be more restricted depending on applicable bargaining agreements.
Employers that mandate vaccines should be prepared to address applicants and employees who seek exceptions for disability-related or religious reasons. It is critical to evaluate, though a flexible, interactive process, whether excepting an individual from the vaccine requirement would constitute an “undue hardship” (keeping in mind that medical and religious accommodation requests have different legal standards with respect to undue hardship).
To the extent COVID-19 poses a “direct threat” to the workplace under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, employers may be able to show undue hardship and preclude individuals from working onsite if they refuse to be vaccinated. In those situations, employers must consider alternatives to allowing employees to report work unvaccinated, such as telework, even if it is preferable for employees to work onsite.
Although employers are not required to accommodate requests for vaccine exemptions based on social, political or other personal objections, they may not retaliate against employees who raise safety concerns about the vaccine, or who collectively engage in protecting activity by opposing the vaccine. Further, employers should consider the employee relations and morale implications of forcing a vaccine on unwilling employees.
Employers must provide safe workplaces. Vaccines are a critical tool in ending the COVID-19 pandemic and returning employees to a safe workplace. However, according to several studies, a significant percentage of Americans do not want to be vaccinated, even if vaccines are provided free of charge. From a social perspective, vaccines appear to be as polarizing as required facial coverings, and imposing consequences on employees who refuse to be vaccinated may have undesirable effects on the business. In addition, there are a number of issues that arise with mandatory vaccines.
Mandatory vaccinations raise privacy issues to the extent the employer will receive any employee medical information as part of the vaccination process. For this reason, employers should consider using a third-party to administer the vaccines, and ensure none of the employees’ medical information is provided to the employer. With third-party vaccinations, the employer would only require employees to show proof of vaccination.
In addition, with mandatory vaccination programs, non-exempt employees must be paid for all of their time and expenses (such as mileage to/from the vaccination site) associated with being vaccinated. Employers can reduce these costs by providing on-site testing where appropriate.
Also, employers should recognize that if an employee has complications or an adverse reaction from a mandated vaccine, workers’ compensation benefits likely will be available.
For these reasons, many employers outside of industries where vaccinations generally are required are choosing to encourage, rather than mandate, employee vaccinations. To allay employee fears about the vaccines, employers can provide information available on the Centers for Disease Control and Prevention’s website regarding the risks and benefits of the approved vaccines, the vaccine approval process, and the agency’s method for determining that a vaccine is safe and effective.
Some employers are offering incentives as a means of encouraging vaccinations. 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 (and reduce the risk of an outbreak). However, incentive programs cannot discriminate against employees who choose not to receive vaccinations because of their disability or religious beliefs. That is, employees who fall into this category should be provided the incentives even if they do not receive the vaccination, which may defeat the goal of such programs.
Finally, employers must remain vigilant in monitoring legal developments in this area. State and local governments likely will issue additional guidance and mandates regarding COVID-19 vaccines, and a new Congress may bring new legislation.
Of course, despite the availability of vaccines, employers must continue to enforce rules regarding facial coverings, handwashing, and social distancing protocols. Vaccines are not 100 percent effective, and requiring compliance with these rules will continue to promote a healthy workplace, even when most employees eventually are vaccinated.