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Employer Mandated Covid-19 Vaccines in the Private Sector

by | Jun 17, 2021 | Firm News |

With the COVID-19 vaccine becoming more readily available, private sector employers want to know whether they can require vaccination of employees.  The general consensus in the legal community is a qualified yes subject to a few caveats and requirements.

Obviously employers have a vested interest in implementing measures to make their workplaces as safe as possible.  Vaccination is another step toward returning to business as usual.  To date, several vaccines have received Emergency Use Authorization (EUA).  Under the EUA, the Federal Drug Administration (FDA) is allowing use of the vaccines, in the absence of final FDA approval, due to the public health emergency.  Some employees may be reluctant to move forward with vaccination without the FDA’s ultimate stamp of approval.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, and national origin.  If an employee objects to mandatory vaccination based on a sincerely held religious belief, employers must engage in an interactive dialogue with the employee to determine the specific nature of the objection.   Religions need not be considered mainstream for Title VII protections to apply.  Once a religious objection is made, employers must evaluate whether a reasonable accommodation can be made without presenting an undue hardship to the employer or posing a direct threat to the health or safety of the employee or others.

A similar process is required if an employee objects to vaccination based on a disability.  Like Title VII, the Americans with Disabilities Act (ADA) applies to employers with fifteen or more employees and prohibits discrimination based on disability.  Upon receiving a request for accommodation, the employer should communicate with the employee to determine whether a legitimate health reason exists for refusing vaccination and whether a reasonable accommodation can be made.

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws prohibiting workplace discrimination.  The EEOC has issued guidance allowing mandatory vaccines subject to certain exceptions as discussed above.  Pursuant to these guidelines, pre-screening questions in advance of mandatory vaccines administered by the employer, or a contractor hired by the employer, may run afoul of the ADA without a reasonable job-related need for administration of the vaccine.  While EEOC guidelines do not have the force and effect of law, compliance can help employers defend Title VII and ADA claims.

The Occupational Safety and Health Act (OSH Act) generally prohibits retaliating against employees who raise concerns about workplace safety.  Employees who refuse the vaccine because they reasonably believe it is unsafe may attempt to seek protection or redress under these whistleblower provisions.  Moreover, the National Labor Relations Act (NLRA) may provide protection to employees who band together to protest the vaccination.  Unionized employers should refer to collective bargaining agreements for obligations before implementing any mandatory vaccination policy.  In addition, employers who mandate vaccinations may be required to compensate employees for associated time under the Fair Labor Standards Act (FLSA).

Legal issues aside, employers should evaluate the need to require vaccinations from a practical standpoint.  One consideration is the availability of the vaccine as we move past the first phases of administration.  Assuming availability, the need for mandating vaccines depends on a variety of factors such as the nature of the workforce, customers and clients served, ability to work remotely, and employee interaction with the public.  In addition, employers may determine that continuing measures suggested by the Occupational Safety and Health Administration (OSHA) is sufficient.  Under certain circumstances, encouraging voluntary vaccination may make more sense.  This is especially true since vaccinations do not exclude employers from complying with any applicable state and local regulations, e.g. face covering requirements, related to COVID-19.

This area is rapidly evolving.  As recently as January 29, 2021, OSHA updated its guidance on mitigating the spread of COVID-19 in the workplace.  However, OSHA has not yet specifically weighed in on whether mandatory COVID-19 vaccinations are permitted.  Employers should consult with employment law counsel before implementing vaccine rules and should seek legal counsel before denying any request for accommodation or exemption.

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