March 3, 2021
Employers and Covid Vaccines – What’s Legal and What’s Not?
Professor of Law Emerita and Program Chair for Paralegal Studies at the School of Professional and Continuing Studies, University of Richmond
As the vaccines roll out and hopes rise about a return to pre-pandemic life, the reluctance of some to get the vaccine has led to questions about what employers can do to either mandate or encourage vaccination. While it is far too early for any judicial decisions on the issue, Guidance from the Equal Employment Opportunity Commission (“EEOC”) provides some assistance in making the determination. The EEOC’s Guidance is not binding on courts, but may be considered by the courts because of the EEOC’s role in enforcing the relevant laws. There is some case law regarding mandatory flu vaccines as well, which is largely consistent with the EEOC Guidance.
In general, the guidance indicates that mandating vaccines is lawful, but requires accommodation of individuals whose disabilities or religious beliefs would prevent vaccination. In addition, depending on the vaccine provider, the questions that are asked before vaccination may constitute a medical exam, which the employer would have to justify under the Americans with Disabilities Act (“ADA”) if covered by the statute. Providing incentives for vaccination instead of a mandate might also implicate the ADA. Employers implementing vaccine programs must carefully consider their approach to avoid running afoul of legal protections for employees.
Employers that require vaccination must reasonably accommodate employees who have disabilities that prevent vaccination, unless the employer can establish that accommodation would cause undue hardship. Undue hardship under the ADA is defined as “significant difficulty or expense.” Under the ADA, the determination of the reasonableness of any accommodation and of whether undue hardship exists is always case specific. Nevertheless, one can imagine accommodations that might be reasonable such as telecommuting, wearing personal protective equipment, or changing the structure of the workplace or job to minimize contact with other people. Some employers may be able to establish that having an unvaccinated employee in a job that requires close contact with other people poses a significant risk of viral transmission that cannot be ameliorated by other means, i.e., that the employee poses a direct threat to health and safety. For other employers, the accommodations will be sufficient to reduce or eliminate that risk. The availability of accommodations should always be discussed with the requesting employee, as the law requires the parties to engage in an interactive process to ascertain the possibility of accommodation. Further, the employer is permitted to request medical documentation of the need for an alternative to vaccination as an accommodation.
Like employees with disabilities, employees with sincere religious beliefs that preclude vaccinations must be accommodated, unless the employer can show that there is no accommodation that does not cause undue hardship. Undue hardship for religious accommodations is easier for an employer to demonstrate, as it is anything more than de minimis cost or burden. If personal protective equipment and social distancing would reduce or eliminate the risk and is consistent with job responsibilities, an employee who brought and wore his or her own mask could probably be accommodated without undue hardship.
These determinations regarding accommodation will almost certainly be influenced by evolving medical knowledge about the pandemic. At present, it is not clear that vaccination eliminates the risk of transmission so if that is the concern, personal protective equipment may well be deemed equally protective. If scientific knowledge were to change, however, the accommodation requirement will change with it.
If no reasonable accommodation is possible and the unvaccinated employee poses a direct threat to self or others in the workplace, the employee may be barred from the workplace. The determination of direct threat is guided by the statute and regulations. A direct threat is defined as 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.” Like reasonable accommodation, the determination of whether someone poses a threat must be individualized to the person and the workplace, and must be based on current medical knowledge. The regulations also contain factors that guide the determination, including the duration of the risk and the nature, severity, likelihood and imminence of the potential harm. Finally, while the individual posing the threat may be prohibited from coming to the workplace, before any discharge, the employer should be careful to insure that the termination does not violate any existing laws, including those that may be enacted as part of the next Covid relief bill. For example, while the specialized leave provisions for Covid enacted in 2020 have expired, leave requirements may be reenacted. In addition, in light of the understandable suspicion that some people of color have of the medical community, terminations may fall more heavily on certain racial or ethnic groups, raising questions about discrimination.
According to the EEOC, employers who mandate the vaccine and provide the vaccine to their employees or employ a contractor to do so will be conducting a medical exam or inquiry under the ADA when they ask the pre-vaccination questions designed to ensure that the vaccine is safe for that individual. Such inquiries of employees must be justified as “job-related and consistent with business necessity.” The guidance points out that to satisfy this test, the employer must show that an unvaccinated employee would pose a direct threat to self or others. Voluntary vaccines provided by the employer do not implicate this statutory provision nor does a requirement that the employee obtain the vaccine from any available source. The difficulty with the latter is that in many places, obtaining a vaccine remains challenging without, and maybe even with, employer assistance.
Given the legal uncertainties surrounding mandatory vaccines, it is appealing to employers to offer incentives for the vaccine without requiring it, and some employers are choosing that route. Vaccine incentives come with their own legal uncertainties, however. If the incentive is substantial, it may raise the question of whether the vaccine is truly voluntary or effectively mandatory. The EEOC has addressed employer wellness programs in the context of the ADA and there is a possibility that a vaccine incentive program might be deemed a wellness program. ADA regulations require that wellness programs be voluntary if they require disclosure of any disability-related information, and as discussed above, the administration of the vaccine does.
In 2016, the EEOC promulgated regulations on wellness programs which limited the size of any incentive to 30% of the cost of self-only coverage for the employer’s lowest cost major medical plan. These regulations were legally challenged, however, and did not ultimately become effective. In January 2021, the EEOC issued a new proposed rule on wellness programs but its publication has been delayed by the Biden administration. It is unclear whether the proposed rule will be published in the Federal Register for comment as is, revised, or simply withdrawn. The as-yet-unpublished rule indicated that only small incentives were allowed in wellness programs that required response to disability-related inquiries. But as indicated, there is no certainty that a vaccine program will be considered a wellness program. Regardless, the law relating to wellness programs certainly suggests that any incentive to vaccinate should not be too generous.
Finally, any incentive program, like a mandatory vaccine, may require reasonable accommodation for employees who cannot receive the vaccine because of a disability. Employers should be prepared with alternative ways for such employees to earn the incentive. A Kroger program, for example, allows employees to earn the $100 vaccine bonus by taking an educational class. Education about vaccine safety or paid time off to obtain the vaccine may be other ways to encourage employees to get vaccinated.
The Covid-19 pandemic has raised a host of new legal issues and caused us to rethink accepted ways of doing and being. While we all long for a return of the days when we can go to shops, restaurants and gyms without fear, employers should carefully consider what approach to take to the vaccines, in light of the ongoing legal uncertainty.