Why Employers May Require Employees Receive the COVID-19 Vaccine
2020 has been a difficult year for everyone. Businesses of all shapes and sizes have struggled, and adapting to new health and safety measures has been especially challenging. All industries, from manufacturing to restaurants, have been significantly affected by the pandemic. Many companies are working at reduced capacities, and many employees have been furloughed or laid off.
With the rollout of new COVID-19 vaccines, many people are looking forward to a return to normalcy. Employers specifically are looking for ways to recover financially. They have faced many difficulties in ensuring that their businesses meet new health and safety guidelines for their employees and their customers. Consequently, many are considering requiring their employees to take the new COVID-19 vaccination as a condition of their employment.
Double Duty: Employee Safety & Good PR
While most employers are genuinely concerned about their workers' health and safety, they are not oblivious to good marketing. The drive to require vaccinations for employees may be partially driven by their need to encourage customers to come back. Having a mandatory vaccination policy can inspire confidence and convince wary customers that it is safe to return.
Keep reading for more FAQs about employer-required COVID-19 vaccines.
Is It Legal for Employers to Require Vaccinations?
Under the law, vaccine requirements are considered a health and safety work rule, and employers can require their employees be vaccinated. In some cases, other types of vaccinations may already be required by employers. An example of this is hospitals that require an annual flu vaccine for medical staff.
While it is true that employers can mandate their employees receive certain vaccinations, it is still unclear whether or not they can legally require a vaccine that only has an Emergency Use Authorization like the Pfizer/BioNTech and Moderna vaccines for COVID-19. However, the FDA is obligated to make sure that EUA vaccine recipients are:
"informed, to the extent practicable under applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product."
Typically, patients receive a fact sheet at the time of vaccination. Fact sheets can also be found on the FDA website.
What Does an Emergency Use Authorization Mean?
The US Food and Drug Administration (FDA) has so far only issued emergency use authorizations (EUA) for the Pfizer/BioNTech and the Moderna vaccines. An EUA is different than full approval of the vaccines. EUAs are used in public health emergencies (like the COVID-19 pandemic) to facilitate medical countermeasures. Because there is no required timeline for the vaccine approval process, it is unclear when these COVID-19 vaccines will receive full approval from the FDA.
Click here to learn more about EUAs and FDA regulations.
US Equal Employment Opportunity Commission COVID-19 Vaccine Guidance
On December 16, 2020, the US EEOC released updated guidance regarding the COVID-19 vaccine and whether employers can mandate vaccination as a condition of employment. This guidance covers many important questions regarding employee rights and COVID-19 protocols. One of the most important questions discussed in this guidance is how an employer should respond to an employee that is unable or chooses not to receive the COVID-19 vaccine.
While the guidance does not explicitly state that mandating COVID-19 vaccination as a condition of employment is lawful, it does presume that this is something employers may elect to do. However, mandatory vaccinations potentially conflict with several civil rights laws, such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 regarding religious exemptions.
What Employers Can't Do
According to the ADA, employers are generally not allowed to ask an employee if they have a disability or the nature or severity of a disability unless these questions are "job-related and consistent with business necessity." Relatedly, the ADA also prohibits an employer from mandating a medical examination. It is important to note that a vaccine requirement or the administration of a vaccine are not inherently in conflict with these restrictions.
However, when they are informed that an employee did not receive a COVID-19 vaccine, they cannot ask the employee follow-up questions, such as "why didn't you get the vaccine?," unless these questions are "job-related and consistent with business necessity." Similarly, pre-vaccine screening may conflict with the ADA, GINA, and other EEOC guidance.
While it is implied that requiring the COVID-19 vaccine is lawful, this does not mean that employers can exclude the unvaccinated employee from the workplace. The EEOC says that the employer first must demonstrate that "an unvaccinated employee would pose a direct threat," and that reasonable accommodations will not mitigate or eliminate that threat. The ADA requires employers to provide reasonable accommodation to those who cannot get the vaccine for medical reasons. Similarly, Title VII also requires accommodation for employees who have religious objections to vaccination.
Additionally, according to EEOC guidance, even when the employer can demonstrate that the unvaccinated employee poses a direct threat that cannot be mitigated, this still does not mean that they can automatically terminate the employee. Instead, they may be required to offer the employee remote work accommodation or leave.
When employees cannot, or choose not to, be vaccinated, the EEOC recommends that the employer consider allowing the employee to continue working while employing current COVID protocols, such as masking and social distancing, when appropriate. Employers are encouraged to consider how many employees are vaccinated and how unvaccinated employees function within the business. This information may help them come to a resolution that does not involve termination.
Alternatives to Vaccine Mandates
While some employers are considering requiring COVID-19 vaccines, others are considering different ways to encourage their employees to get vaccinated. Some are considering offering financial incentives, while others may ease PPE restrictions for those who receive vaccinations.
Still others are considering alternatives to firing employees who refuse the vaccine. For example, requiring employees to go through an educational course on vaccines has the potential to reassure hesitant employees without taking such a hard line.
Click here for a more detailed explanation of EEOC COVID vaccine guidance.
The COVID-19 Vaccine in the Coming Months
Vaccinations have only just begun, and frontline workers are being prioritized. According to the Pew Research Center, approximately 40% of Americans are not planning on getting vaccinated. It is posited that 70% of the population needs to be inoculated or have natural antibodies to reach herd immunity.
Meanwhile, as of November 2020, the US Department of Labor's Bureau of Labor Statistics has reported that the US unemployment rate is 6.7%. This puts unemployment numbers at 10.7 million. With such high unemployment numbers, there is significant pressure on the labor market, and businesses and Americans, in general, are anxious to get back to work.
Understanding your rights is more important than ever, for both employers and employees alike. If you are dealing with a vaccine mandate and need legal representation, turn to Shellist Lazarz Slobin LLP. Our attorneys are highly qualified and well-versed in employment law. We are prepared to help you navigate new COVID-19 vaccination-related guidance.