COVID-19 vaccine FAQs for employers

Can employers mandate a COVID-19 vaccine?
What are the exceptions that employers may have to make to their mandatory vaccination policy?
Mandatory versus voluntary vaccination policies

Can employers mandate a COVID-19 vaccine?

Yes, employers can implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions.

Mandatory vaccination policies must be:

• job related;
• consistent with business necessity; or
• justified by a direct threat.

The Equal Employment Opportunity Commission (EEOC) has already deemed COVID-19 in the workplace to be a 'direct threat' with respect to requiring COVID-19 viral testing. Further, on 16 December 2020 the EEOC published several FAQs to guide employers that choose to implement a mandatory COVID-19 vaccination policy.

Any mandatory COVID-19 vaccination policy must comply with federal and state employment laws, including that employers must consider whether making exceptions to their policy may constitute a reasonable accommodation for employees who cannot receive the vaccine due to legally protected reasons.

What are the exceptions that employers may have to make to their mandatory vaccination policy?

There are two federal employment laws that may require employers to make exceptions to a mandatory vaccination policy. Specifically, these are the Americans with Disabilities Act (ADA), which protects employees with disabilities, and Title VII of the Civil Rights Act 1964 which, in this context, protects employees with sincerely held religious beliefs. Some states also have similar laws that will govern state to state.

Both the ADA and Title VII require employers to make reasonable accommodations for employees where doing so will not constitute an undue burden. In practice, typically, this requires a somewhat individualised analysis.

First, employers can generally require employees making exception requests to provide reasonable supporting documentation to verify the basis for the request and help in the determination of whether a reasonable accommodation can be made.

From there, the analysis differs between the ADA and Title VII – namely:

• the ADA excuses employers from accommodating employees only if any accommodation would pose a significant difficulty or expense; and
• under Title VII, employers need only show that any accommodation would pose more than a de minimis cost or burden.

In either case, the analysis of whether to provide an accommodation is employer and employee specific, requiring employers to consider factors such as:

• the employee's underlying limitation (eg, with the ADA, employers need provide only a reasonable accommodation that permits the employee to do the job, not necessarily the employee's preferred accommodation);
• the employee's job and how this might affect the employer's options on accommodation (eg, can the job be feasibly performed remotely?); and
• whether the accommodation under consideration would pose safety risks for the employee or others.

Mandatory versus voluntary vaccination policies

There are a number of factors that employers should consider when determining whether to make a COVID-19 vaccine mandatory or voluntary, including:

• the administrative burden;
• legal exposure; and
• public relations (PR) issues.

With a flu vaccine, the EEOC has stated that while employers can mandate such a vaccine, it suggests that employers simply strongly encourage but do not require vaccination. The flu is not COVID-19 and employers will be going through a different calculus in making their choices on COVID-19 vaccination, even if they do not currently mandate flu vaccination; however, the factors that employers must weigh are similar.

If a vaccine is mandatory, employers should consider the following:

• They will have an increased administrative burden because they now must deal with requests for exceptions – an individualised analysis that will keep HR and legal teams busy. There is also an increased administrative burden to ensure that employers are tracking compliance.
• Denying an accommodation can generate potential exposure to claims for failure to accommodate under the ADA (disability) and Title VII (religion). Ultimately, the denial may be warranted and legally justified by employers, but this will not stop the certain wave of litigation on this issue. Moreover, because the area is relatively untested – and completely untested with respect to COVID-19 – these lawsuits may be more difficult to defeat on summary judgment given open questions of fact as to whether the denied accommodation constituted an 'undue burden', for example. The recently published EEOC guidance ultimately leaves the decision-making burden and legal risk on employers.
• As much of the 'whether-to-accommodate' analysis will be employee specific, this leaves employers open to arguments that they have provided exceptions or accommodations on an unfair basis, giving rise to discrimination claims. Employers mandating a vaccine must work with their HR and legal teams in unison to provide as uniform a response as possible in similar situations.
• Taking adverse action, such as termination, with employees who refuse a COVID-19 vaccine can likewise generate potential exposure to wrongful termination claims.
• There is also some concern, given some of the unknowns as to potential side effects of a COVID-19 vaccine, that employees who must get the vaccine who then become ill, injured or die may be eligible to bring a claim against their employer. These claims would likely be swept into workers' compensation. Employers should also consider whether the Public Readiness and Emergency Preparedness Act may provide additional immunity, particularly those hospital and health system employers that are administering the vaccine or acting in a programme planner capacity.

On the other hand, mandating a COVID-19 vaccine may provide some protection for employers, including to the extent that this will increase employee participation and ultimately create a safer, healthier workforce. Moreover, those that mandate the vaccine in their workforce may see PR benefits, providing patients, customers, employees and recruiting candidates with an increased sense of safety and confidence.

That said, given the potential risks and burdens of mandating a COVID-19 vaccine, it is unsurprising that many hospitals – which have first access to the vaccine for their workforce – are making the vaccine voluntary and opting to 'strongly encourage' it, at least in the initial stages.

For further information on this topic please contact Michelle Strowhiro at McDermott Will & Emery by telephone (+1 310 277 4110) or email (mstrowhiro@mwe.com). The McDermott Will & Emery website can be accessed at www.mwe.com.