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By: Kevin G. Kenneally and Janet R. Barringer
With the development of vaccines that have been determined to be effective against COVID-19, both employers and employees are asking when it is appropriate or safe to return to the office. One recurring question is whether a business can require its workers to be vaccinated in order to return to work. While there is much recent written guidance suggesting that the employer can require employees to be vaccinated, there remain questions about the potential legal liability of a business either for requiring or failing to require employees to undergo vaccination. For this reason, some employers—other than those in the health care or on the frontlines fighting this scourge– believe the preferred path to take might be encouraging – rather than mandating – the vaccine for its employees.
The Equal Employment Opportunity Commission (EEOC) issued guidance in December 2020, located on its website at www.eeoc.gov, that employers can mandate that employees receive COVID-19 vaccinations. Employers who require the vaccine, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other federal and state workplace laws. Federal employment laws require employers to make exceptions to any mandatory vaccination policy, including under the ADA, which protects employees with disabilities who may be vulnerable to side effects, and Title VII, which protects any employee with sincerely held religious beliefs that prevent the employee from receiving the vaccination.
The ADA allows an employer to include as a workplace policy “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace” which permits a mandatory vaccine policy. If an employer’s vaccination requirement impacts a worker with a disability, however, the employer must show that unvaccinated disabled employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC has said employers should evaluate four factors to determine whether a “direct threat” exists: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. If an employee who cannot be vaccinated poses a “direct threat” to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
There are two exceptions where disability-related screening questions can be asked without satisfying the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis, the ADA requires the employee’s decision to answer pre-screening disability-related questions to also be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine and may not retaliate against the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
FMGlaw BlogLine previously discussed the vaccine manufacturers’ immunity from products liability suits conferred by federal law for illness, injury or complications caused by the vaccine. An employer, however, may find itself liable for an employee’s injury resulting from a mandatory vaccine, which could be considered a workplace injury under state workers compensation laws. Such injuries and illnesses resulting from required vaccines may be covered by the employer’s workers’ compensation insurance. Employers considering a mandatory vaccination program should check with their broker or business insurance provider to determine whether there is coverage.
Employers that choose not to require employee vaccinations separately may find themselves liable to customers or vendors exposed to COVID-19 at a business that could have been prevented by a vaccination program. Depending on the business and the nature of interaction with the public, a vaccination program may be advisable.
If vaccination is mandatory for employees, the business could encounter wrongful termination or other legal issues when the requirement is enforced in the workplace. Adverse action, such as termination, change of shifts or hours, demotions or transfers involving workers who refuse the COVID-19 vaccine could expose the company to litigation. Thus, many businesses and employers may opt to encourage employees to be immunized rather than implement company-wide mandatory vaccination programs. The EEOC, for example, previously suggested such a voluntary approach for the seasonal flu vaccine in certain instances: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” Such encouragement – as opposed to a workplace-wide requirement – might be prudent for some employers for the COVID-19 vaccine. Many employers may opt to encourage their workers to obtain the COVID-19 vaccine, including by offering the following: make the vaccine readily available to the employees, cover the cost of the vaccine, provide workplace incentives to those who receive the vaccine, and pay for time off to obtain the vaccine.
Employers need to strike the proper balance during the pandemic and when assessing the competing objectives of protecting employees’ rights under the ADA and freedom of religion, limiting their own exposure to legal liability, and protecting employees and customers from the COVID-19 virus.
If you have questions or would like more information, please contact Kevin G. Kenneally at email@example.com, Janet R. Barringer at firstname.lastname@example.org.