Vaccination as a Condition of Employment: Evaluating Legal Risks of Mandatory Vaccine Policies During the Pandemic

With coronavirus vaccines receiving their emergency use authorizations from the FDA and being rapidly rolled out, employers will need to evaluate a mandatory vaccination policy that balances employee rights with novel business realities and pre-existing legal frameworks lacking clear guidance in the face of COVID-19.

Under existing federal law and regulations, employers may be able to institute mandatory vaccination policies to protect health and safety in the workplace. Although a mandatory vaccine policy is not completely free from legal risk, courts more recently have upheld vaccination requirements when an employer shows that the need for vaccine-acquired immunity is job-related, consistent with business necessity, and not more intrusive than necessary. Other constitutional challenges to the vaccine may occur, but such challenges could be influenced significantly by government and public sentiment likely to affect an outcome with the courts.

Current CDC guidance has identified frontline healthcare workers, workers in essential industries, and other high-risk individuals based on individual health factors as groups that will likely receive the earliest allocations of COVID-19 vaccines if demand outpaces supply, as expected. Employers with workers in the first two categories will likely have the strongest case for job-relatedness and business necessity when instituting a mandatory vaccination policy. But employers in other sectors may also be able to make a compelling case for mandatory vaccinations.

Proactive Consideration of Medical and Religious Accommodations

All employers implementing mandatory vaccine policies should consider (and train staff for) employees’ potential requests for medical or religious accommodations. For employers covered by the Americans with Disabilities Act (ADA), mandatory medical “examinations” (including a requirement that employees receive vaccines) may require reasonable accommodations for employees with certain disabilities, unless the employer can show that the employee poses a “direct threat” (i.e., a significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to their own health or to others in the workplace. Similarly, employers covered by Title VII of the Civil Rights Act of 1964 may need to accommodate, absent direct threat, employees with religious objections to vaccination generally or to the specific production method of the then-available COVID-19 vaccine.

The U.S. Equal Employment Opportunity Commission (EEOC) determined in March 2020 that COVID-19’s “direct threat” to workers’ health justified employers’ medical examinations of employees, including more in-depth health-related questions, medical screening before allowing employees to report to work, and other similar conduct. This same finding of the direct threat posed by COVID-19 in the workplace may justify a mandatory vaccination policy for most employees as well.

When faced with employees requesting medical or religious accommodations (supported by appropriate documentation), employers will need to determine whether any potential accommodation either (a) would not sufficiently reduce or eliminate the direct threat posed by the pandemic or (b) would impose an undue hardship on the employer.

But these standards of accommodation, threat, and hardship will vary both under federal law and in the relevant factual scenarios of each employer. Under the ADA, for instance, undue hardship requires an employer to show that a reasonable accommodation for a medically-objecting employee would cause significant difficulty or expense after consideration of several factors. Under Title VII, undue hardship for religious accommodations need only meet a “de minimis test,” meaning that an employer would show that the accommodation imposed a more than minimal cost to demonstrate undue hardship in accommodating an employee objecting to vaccination on religious grounds. Because of these variations, federal law could require an employer to accommodate a disabled employee but not an employee demanding an accommodation for religious observance.

Further complicating these matters are the patchwork of state and local regulations of the workplace. For instance, in California, the Fair Employment and Housing Act (FEHA) provides greater protection for an employee making a request for a religious accommodation than under Title VII. Rather than the federal “de minimis” test for undue hardship of religious accommodations, California employers will need to evaluate the hardship presented by accommodations under a significant difficulty or expense factor-test similar to the federal ADA standard.

Practical Considerations

While employers await guidance on COVID-19 vaccination from applicable state and federal authorities, there are some practical issues employers should consider now regarding an approach to vaccination, including:

• While mandating vaccination presents challenges related to medical and religious accommodations, the absence of a mandatory policy is not without cost. Without adopting a vaccination program, employers may face claims under the Occupational Safety and Health Act (OSHA), or tort or workers’ compensation claims for failing to meet the obligation to provide a safe and healthy work environment.
• Employers should encourage and incentivize workers to get vaccinated. Measures to promote employee vaccination could include: (1) outreach to company group health insurers to inquire whether the vaccine is covered by the group policy, (2) stipends or reimbursements for vaccination, (3) guidance on where to get vaccines (when vaccines become more widely available), (4) allowing employees to use PTO and other applicable leave to provide time off necessary to get vaccinated, and (5) demonstrations of personal commitment by company executives (e.g. sharing educational materials or testimonials concerning vaccination). Such incentives are particularly germane for those employers who decide that a mandatory vaccination policy may not fit with business necessity or company culture.
• Create a thoughtful vaccination policy and enforce this policy as consistently and uniformly as possible. While employers should work within existing frameworks to consider religious and medical accommodations on a case-by-case basis, selective enforcement of a vaccination policy could lead to disparate treatment discrimination claims.
• Stay mindful of state and local laws, regulations, and orders concerning vaccinations and reopening plans. Employers with locations across multiple jurisdictions will have to tailor policies to account for variations among state and local authorities.
• Employers in a unionized setting will need to consider how a vaccination policy will fit within applicable collective bargaining agreements or trigger bargaining obligations.

In the vacuum of clear and controlling federal, state, and local guidance and with many questions unanswered as to the safety and efficacy of COVID-19 vaccines for those who receive doses, employers considering vaccine mandates as part of their return-to-work plans or as an enhancement to workplace health and safety as the vaccines become increasingly available should consult with our team of HR professionals to evaluate appropriate policies and accommodations issues.