To Vaccinate or Not to Vaccinate? The Latest Quandary.
By: Kimberly J. Doud and Nancy A. Johnson
Littler Mendelson P.C.
The duty to maintain the health and safety of employees sits at the forefront of employers’ minds as the COVID-19 virus’s primary transmission through community spread has killed nearly half a million Americans. Now, employers face an emerging argument they have a duty to require employee vaccinations premised on the “general duty clause” or OSHA-imposed obligations to ensure a workplace “free from the recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Negligence claims and workers’ compensation claims relating to workplace COVID transmission are mounting. Most employers seek to protect their employees while weighing potential liability concerns if vaccines are not required. This desire for balance is not callous—a single lawsuit arising from an employee’s death after COVID-19 exposure could literally bankrupt many small or medium-sized businesses. Additionally, depending on the industry, employers must consider the health and safety of and potential liability from not only employees, but guests, customers, vendors, and visitors.
By December 2020, two vaccines were nearly available to the marketplace. Florida had already been working on its vaccine distribution plan, suggesting, unlike most other states, all individuals over 65 be included among the first eligible group. On December 3, the CDC’s advisory committee issued recommendations allocating the first shipment of vaccines to health care personnel and residents of long-term care facilities. As each state would be responsible for creating its own distribution plan and path forward, Florida started ramping up its preparations.
With death tolls rising, the December 11 announcement the FDA had granted Pfizer-BioNTech an emergency use authorization (“EUA”) – and the immediate shipping of the vaccine – seemed like a ray of light and hope to finding a path back to “normalcy.” A few days later, Moderna’s vaccine received an EUA providing another option. And soon there are likely to be at least two more options – and more supply – available. The CDC and government scientists predict America will have enough approved vaccines to vaccinate all Americans sometime during summer 2021.
On December 23, Florida Governor Ron DeSantis announced Florida’s plan to distribute vaccines first to Floridians aged 65 and over, long-term care residents and staff, health care personnel with direct patient contact, and hospital patients deemed to be extremely at risk. Now vaccines are being distributed, the logistics of distribution are being worked out, and employers that have largely been taking a wait-and-see approach must decide about vaccination of their workforce.
In this article, we will evaluate three options employers have, including mandating vaccinations, encouraging them, or remaining silent, and will provide the benefits and pitfalls associated with each option.
Mandating Vaccinations
Initially, employers may consider implementing a mandatory vaccination policy. If done appropriately, the EEOC has approved this as an acceptable path. And, although this option may seem risky and potentially hard to administer, there are a variety of reasons employers would consider doing so: protecting workplace and community health; reducing absences and lost productivity; ensuring people actually get vaccines; being able to re-open and stay open; and avoiding potential liability.
As noted, though, any such mandate does not come without potential pitfalls including considering medical issues or religious beliefs preventing some employees from being vaccinated and an employer’s duties and responsibilities under applicable laws or addressing any personal anti-vaccination beliefs employees have aside from religious or medical objections. Still, in certain industries, including health care settings where risk is extremely high, it may be a good option. If an employer chooses this path, where should an employer start and what would a mandatory vaccine policy look like?
First, employers should consider creating a team responsible for developing and implementing the vaccination policy, designating individuals responsible for monitoring vaccination supplies and vaccination priorities. This team should also consider whether any state laws or local ordinances prohibit mandatory vaccination programs (employers with operations in Oregon take note), whether (if a unionized workforce) provisions of the collective bargaining agreement support management’s right to promulgate such a policy and, if so, whether “effects” bargaining over resulting impacts is required, and the circumstances under which an employee can be excused from the vaccine.
Any decision to mandate vaccinations must also consider supply, distribution and administration challenges, public health policy, community considerations, and legal and employee relations considerations affecting the individualized workplace. Like any employer “mandate,” management must balance, on one hand, the intent to treat all similarly situated employees the same and, on the other hand, necessary exceptions in appropriate circumstances.
In December 2020, the EEOC issued guidance related to this dichotomy. First, the EEOC announced a vaccine is not a medical exam. One legal pitfall is therefore avoided - an employer does not have to demonstrate job-relatedness or consistency with business necessity to mandate vaccination. However, although the vaccination itself is not a “medical exam,” pre-vaccination screening questionnaires may implicate the ADA’s prohibition on disability-related inquiries or Title II of the Genetic Information Nondiscrimination Act (GINA) and employers must craft such inquiries so as not to run afoul of those laws.
For example, employers must demonstrate the disability-related screening inquiries such as any prior allergic reactions are “job-related and consistent with business necessity” to not conflict with the ADA’s prohibitions on gathering medical information. Further, an employer can meet this showing only if it can demonstrate the employee is a direct threat to the health or safety to him or herself or others. This multi-step analysis can feel like navigating land mines to an employer trying to keep its employees safe.
One way to avoid this problem and still maintain a mandatory vaccination policy is to require employees to receive their vaccinations from a third party with whom the employer does not have a contract (e.g., a pharmacy or private healthcare provider).
Additionally, questionnaires may ask about genetic information, with family medical history the most likely example – consideration of which is prohibited by GINA. Unlike disability-related inquiries under ADA, GINA contains no exception to the prohibition against the involuntary solicitation of genetic information. To avoid this strict prohibition, employees should receive their vaccinations outside the workplace without the involvement of the employer as GINA is not triggered if a third party with whom the employer does not have a contract gathers the information and administers the vaccine.
The next concern – what to do when an employee indicates he or she cannot vaccinate – may also seem daunting, but is not insurmountable with proper planning and a solid action plan. When an employer is faced with medical documentation indicating an employee’s inability to be vaccinated, whether because of pregnancy, allergy, or some other underlying condition, employers can simply handle as they would any ADA request for an accommodation.
As a quick review – if there is a disability sustained by medical documentation, the employer should then engage in the interactive process with the employee and include the medical provider for clarification and guidance on an acceptable accommodation if appropriate. If an appropriate accommodation can be provided, it should be.
So, for example, if someone cannot be vaccinated, the employer must look at the circumstances surrounding that employee – the work environment, the job, whether the job can be done from home so as to avoid that employee’s contact with other employees or customers, whether that employee can come into the workplace but wear and be subject to strict PPE measures and isolation from interactions. If no accommodation is available, then it may be necessary to provide leave (in the case of a pregnant or lactating employee who may be able to be vaccinated in the future) or to separate employment. The ADA’s direct threat standard allows an employer to take an adverse employment action if the only accommodation available would still result in a direct threat of harm to the employee or others.
A similar analysis should be undertaken if an employee is unable to be vaccinated due to a sincerely held religious belief. While the ADA’s direct threat analysis is not applicable to an accommodation request under Title VII for a sincerely held religious belief, the end result is the same if an accommodation would result in undue hardship. If allowing a certain employee to work unvaccinated would result in a direct threat of harm, it certainly would be an undue hardship to force the employer to provide such an accommodation. Thus, as long as employers think through these steps and take an individualized approach seriously considering whether a requested accommodation is appropriate, employers can make their way through this legal minefield and still mandate vaccinations.
Encouraging Vaccinations
The second option – a hybrid approach – is to adopt a policy encouraging vaccines including potentially incentivizing employees who are vaccinated. If this approach is most consistent with company culture, employers should consider the type and amount of incentive that would be most effective in encouraging vaccination. While the type and amount of incentive should be such that it would pique employee interest, employers need to be cognizant some employees may interpret this as an employer’s belief vaccination is inherently risky. Further, if an incentive is particularly valuable or desirable, employees could claim the vaccination was not a “voluntary” decision at all.
Regardless, in other situations, many employers provide cash or other rewards related to certain behaviors and have found doing so boosts morale and retention. While previously, employers often offered wellness-based incentives (like smoking cessation or lowering cholesterol), a vaccination incentive would, instead, be participation-based. Thus, since a vaccine incentive would be provided outside a group health plan, EEOC regulations govern. And, as a result, employers must then offer some type of accommodation to allow disabled employees to participate or earn the reward without engaging in the vaccination. An example of a reasonable alternative may be to provide an option to engage in another activity. It is less clear whether employers must accommodate those employees who refuse vaccinations due to sincerely held religious or personal beliefs unrelated to a disability. Additionally, there may be FLSA related issues of payments of such incentives. Should an employer want to consider such an incentive program, it would be advisable to consult with counsel first.
Another aspect of incentive programs influencing effectiveness is timing. Employers will likely want to set a time period during which employees must be vaccinated to receive the incentive. A shorter period could be used to encourage employees to get vaccinated as soon as it becomes available to them. A longer period might allow employees to delay vaccinations (i.e. for pregnant workers).
This voluntary vaccination policy would perhaps be less administratively burdensome and present less liability risk for discrimination claims but would still provide the benefit to the employer of some liability shield from claims of negligence or worse in allowing unsafe conditions to persist in the workplace.
Remaining Silent
The last option employers have – and the default option if an employer does not make its own choice – is to remain silent. Certainly, this approach would avoid the difficulties in navigating through ADA, GINA, Title VII, and other complicated restrictions. Further, this option would avoid potential clashes with those employees who simply do not want to be vaccinated – not for a religious or medical reason, but based on personal beliefs. For example, public employers may feel even more compelled to take this approach as mandatory vaccination implicates state and federal constitutional liberties such as under the Free Exercise Clause, Due Process Clause, and Equal Protection.
However, while employers can circumvent these hurdles by not doing anything, other risks as set forth above grow exponentially. OSHA is hardening its approach to enforcement of safety measures relating to COVID, and although Florida is likely close to passing a state law providing an employer liability shield for COVID workplace transmissions, the shield is far from certain as it is not yet in place and will face constitutional challenges.
Whether to vaccinate or not is not an easy question, and while there is no one-size-fits-all answer, avoiding answering the question likely invites far more problems than the ones already present. The time is now for employers to start considering options confronting the vaccine decision.