As the rollout of the two current FDA-approved vaccines for COVID-19 takes place, many employers may be looking toward reopening offices for vaccinated employees. Can an employer require employees to be vaccinated as a requirement to return to the office? Jackson Walker attorneys Sarah Mitchell Montgomery and Sara Harris discuss this issue.
Traditionally, U.S. courts have upheld vaccination requirements for work in the past, but as with all things COVID-related, this issue is novel. The Equal Employment Opportunity Commission (EEOC) recently issued guidance approving employers to require vaccinations, but there were key exceptions based on the American’s with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. There are also other employee protections under the Family Medical Leave Act (FMLA) and exemptions for employees based on a sincerely held religious belief, practice, or observance.
In addition to the immediate rules, regulations, laws, and exemptions, there may be long-term risks for future tort actions based on the overall safety of these vaccines due to the current vaccines being approved under the Emergency Use Authorization. So there are many issues for employers to consider as they look to reopen workplaces and bring vaccinated and unvaccinated employees back.
Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s January 13th, and this is Jackson Walker Fast Takes. The COVID-19 vaccine is on everyone’s mind as the initial phases of the distribution of the vaccine takes place. Many of us have resisted going back to our workplaces until we’ve taken the vaccine, which brings up the issue of can employers require that employees take the vaccine before they can return to work? I asked Jackson Walker attorneys Sarah Montgomery and Sara Harris to come on the show and discuss this very issue. Sarah and Sara, both of you, welcome to the show.
Sara Harris, let me start with you. I’ll hit you with the big question: Can employers require COVID-19 vaccinations, and – to follow that up – should they?
Sara Harris: Sure, Greg. I would say yes, in a general sense, employers can require employees to take certain vaccines. In the context of the COVID vaccine, the issue is a little bit less clear. There are some additional risks that employers are going to want to consider, given the unique nature of this very new vaccine. That said the issue itself is not new, and that’s true particularly for employers in the healthcare industry. Healthcare providers frequently do have mandatory vaccination policies for a flu vaccine, TB, MMR, our typical household vaccine names. That’s pretty common. That goes towards protecting the patients, particularly patients who are vulnerable to those common diseases. Typically, like in the healthcare industry, that’s a job-related reason for requiring mandatory vaccination. That’s an important point, generally, and that certainly would apply here with the COVID vaccine. But by and large, you know, courts across the country, uphold mandatory vaccination programs. We’ll get into what some of those features are.
Greg Lambert: Alright, Sarah Montgomery, of what restrictions are there out there, either through state or federal regulations or laws, that would prevent an employer from requiring an individual from getting the vaccination?
Sarah Montgomery: That’s a great question. From the standpoint of the Equal Employment Opportunity Commission, which issued guidance last month regarding the vaccine, employers can require employees to be vaccinated with a few key exceptions that arise under the Americans with Disabilities Act and under Title VII of the Civil Rights Act of 1964. Under the ADA, employees may be entitled to an exemption from a mandatory vaccine requirement based on a disability that prevents the employee from taking the vaccine. The employee, to establish that they have a disability, would need to demonstrate a physical or mental impairment that resulted in a substantial limitation of a major life activity. Courts are split on whether having allergies are sufficient to establish an ADA-covered disability in the context of a vaccine. For example, the vaccine may cause the employee shortness of breath for a period of time after receiving the vaccine, and that very likely is not going to be sufficient to establish a qualifying disability in this situation. Another disability that has been alleged in the context of vaccines is anxiety—employees alleging that they have anxiety to getting the vaccine and the potential results of having the vaccine—and that is questionable, whether that’s going to be considered sufficient for an employee to seek an accommodation for having a disability.
Should an employee be able to establish they do have a disability that needs to be accommodated, then the employer would need to go through the interactive process to determine whether there was a type of reasonable accommodation that could be made for that employee so that they would not have to get the vaccine. This could involve allowing the employee to telework, or providing the employee with a workspace that was separated from other employees, or even providing the employee with additional personal protective equipment, such as masks or gloves or other shields, any type of equipment that would increase their safety and security. If there’s no reasonable accommodation that can be made, which does occur in some cases, then an employer may be able to exclude the employee from the workplace if his or her unvaccinated status creates a direct threat for the employee or for others. Now, that does not mean an employer can immediately move an employee in that situation. Employers must consider whether there are other legal protections or rights that would apply in this situation, such as the Family and Medical Leave Act. A similar analysis would need to be conducted for pregnant employees who have a qualifying disability – even a temporary one – that prevents them from taking a COVID-19 vaccine. So again, the employer would need to go through that interactive process to determine whether there was a reasonable accommodation that could be made for that employee.
Under Title VII of the Civil Rights Act of 1964, an employee may request an exemption from the vaccine requirement based on a sincerely held religious belief, practice, or observance that prohibits the vaccine. Again, in such a situation, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. Now, to establish an entitlement to a religious accommodation, the employee must be able to prove they have a religious belief that is sincerely held that prohibits them from receiving the vaccine. While the person’s faith does not have to be one of the major world religions, generally an anti-vaxxer-type objection or personal skepticism is not going to be sufficient and not going to be viewed as a sincerely held religious belief. If the employee establishes a sincerely held religious belief, the employer can still deny making an accommodation if it poses an undue hardship, which is defined under Title VII as greater than a de minimis cost to the employer. Under Title VII, an undue hardship would include taking into consideration harm to the employer, its employees, and third parties. So if having an unvaccinated employee in the workplace is going to create harm or potential harm to the other employees or to even people coming into the workplace who are third parties, then the employer would likely be able to deny the potential accommodation.
Employers should also be aware that there may be some legal limitations at the state and local level that would come into play. I’ve just covered those are the big ones at the federal level that are the ones that are really, I think, top-of-mind right now for most employers. Also, there are some non-legal considerations that would include the cost of the vaccine and of course, I think, the big one right now is availability. Requiring employees to be vaccinated is not really logistically feasible right now, because the vaccine just isn’t readily available to the majority of the public. The rollout has been much slower than anticipated. So, really, it’s difficult to say right now when it will be available in enough quantities for employers to even realistically require their employees to be vaccinated. That’s obviously probably the biggest concern. Once they can actually get the vaccine and start asking their employees to go be vaccinated, then these other issues of exemptions and accommodations are going to come into play.
Greg Lambert: Sara Harris, is there anything that’s specifically unique or different about this COVID-19 vaccination versus any of the previous vaccinations that we’ve had?
Sara Harris: There is. Like everything we’re experiencing with COVID, there is a unique component to this issue, as well. That is that the two vaccines that are currently approved in the U.S. at this point—approved by the FDA—are approved only under an emergency-use authorization, or EUA. What that means, EUA approval for a vaccine is sort of a lower standard. There’s a lower threshold for ensuring safety than what you typically see with a full approval. So, basically, the government has concluded that the vaccine is safe and effective, but what we don’t have—we haven’t amassed all the clinical data that you typically see go into this determination before a full approval for a vaccine to roll up to the general public. So that is different from the framework for most vaccines.
This EUA is a different framework. And what that means is that we have a bit of a gray area here for employers considering mandatory coronavirus vaccination programs. That is specifically because under the EUA, there’s a component where the Secretary of the Health and Human Services Department can address specifically whether or not people can refuse to take the vaccine and the consequences for that refusal if refusal is permitted or to what extent. Right now, the Health and Human Services Department has not addressed that issue explicitly, so we don’t know what that component may look like in the coming weeks or months as this sort of develops. The big concern for employers as a result of that is considering the additional tort liability risk that you may face in connection with an employee who was required to take the vaccine and then has a bad reaction, or, you know, several years down the line, we get that long-term clinical data and it says, well, you know, there’s these bad side effects out here—speculation at this point, but those would be the types of issues that you may face. And that’s one way that the COVID vaccine is a little bit unique compared to most vaccines that are at issue when we’re talking about mandatory programs.
Of course, this is uncharted territory in terms of what courts have done. We haven’t seen anything out there that a court has ever addressed—whether an employer can implement a mandatory program where the vaccine is only approved through a EUA. I think the takeaway there, in addition to the other concerns, the practical concerns about availability, employee willingness, and the framework for accommodations, we have to think about that additional risk, which, you know, may be very real down the line.
Greg Lambert: So it’s truly a novel situation for a novel virus.
Sara Harris: That’s right.
Greg Lambert: Alright, well, Sara Harris and Sarah Montgomery, thanks for taking the time to discuss this important issue. And both of you stay safe.
Sarah Montgomery: Thank you, Greg.
Sara Harris: Thank you, Greg.
The music is by Eve Searls.
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