Employers May Encourage Employees to Receive COVID-19 Vaccine, But Requiring It Raises Issues

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) released guidance that stated that COVID-19 vaccinations do not qualify as medical examinations under the Americans with Disabilities Act (ADA) and that employers could therefore mandate vaccination for COVID-19, subject to certain recognized exemptions.¹ However, doing so requires that employers navigate a number of federal laws, including the ADA, Title VII of the Civil Rights Act and the Genetic Information Nondiscrimination Act (GINA).²,³ In addition, some employees have raised challenges to employer-mandated vaccination programs on the basis that the current COVID‑19 vaccines are only authorized through Emergency Use Authorization (EUA), which is not full licensure under the U.S. Food and Drug Administration (FDA) regulations. Many employers have chosen to encourage, rather than mandate, vaccination, although this approach has its own pitfalls.

One recognized exemption to mandating vaccinations is the disability exemption under the ADA. To comply with this exemption, employers mandating vaccination must provide "reasonable accommodations" to those who are unable to receive the COVID-19 vaccine because of a disability. The EEOC says, "[i]f a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense."

The ADA also requires that employers keep employees' medical information confidential, even if it does not implicate disability. As a result, if the vaccine is administered by the employer or by a third party with whom the employer has a contract, screening questions given before the vaccine is administered must be kept confidential. Because these screening questions may elicit information about a disability, employers must demonstrate that any disability-related inquiries involved in the vaccination process are "job-related and consistent with business necessity." To meet this standard, employers must demonstrate that, based on objective evidence, the employee is a direct threat to the health or safety of themselves or others. Even if the vaccine is not administered by the employer, the employer cannot require that employees provide any medical information as part of their proof of vaccination. The Centers for Disease Control and Prevention (CDC) says, "If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof."

Another recognized exemption to mandating vaccinations is the "sincerely held religious belief" exemption under Title VII of the Civil Rights Act. To comply with Title VII of the Civil Rights Act, employers must provide "reasonable accommodations" to those who are unable to receive the COVID‑19 vaccine because of a sincerely held religious belief, unless such accommodation would pose undue hardship to the employer. EEOC guidance states that employers should assume that an employee's "request for religious accommodation is based on a sincerely held belief."

While GINA is not implicated by requiring that employees be vaccinated, Title II of GINA may be implicated by pre-screening questions asked before administering the vaccine, to the extent those questions may ask about genetic information such as an individual's family medical history. GINA issues are not implicated if the vaccine is administered by a third party, assuming no contract exists between the employer and third party.

OSHA

Occupational Safety and Health Administration (OSHA) applies to nearly all employers with limited exception (i.e., businesses with fewer than 10 employees, self-employed individuals and churches, among others).

By executive order issued in January 2021, the Biden Administration directed OSHA to consider issuing a COVID‑19 standard and set a March 15 deadline to do so. That date has come and gone, and no standard has yet been issued by OSHA. But OSHA still offers information and guidance for COVID-19 vaccines. For example, employers find themselves facing a workforce at varying stages of vaccination: some employees will be fully vaccinated while others have not yet received their first doses, and still others may not be vaccinated due to a recognized exemption as noted above. OSHA's Jan. 29 guidance makes it clear that employers may not, with regard to COVID-19 safety protocols, distinguish between employees who have and have not received the vaccine. All employees, regardless of their vaccination history, should continue to fully abide by COVID-19 prevention protocols, including the wearing of masks or facial coverings and the observance of social distancing protocols. OSHA has emphasized the still-in-place recommendations to prevent the spread of COVID-19, particularly because the CDC has noted that vaccinated individuals may still be able spread the virus. Employers should continue to be mindful of their obligations under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, which requires employers to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm," which includes COVID-19.

Emergency Use Authorization

All three of the current COVID-19 vaccines are authorized through EUA, but they do not have full authorization or licensure from the FDA. As a result, they are governed by a distinct set of federal laws. Under 21 U.S.C. § 360e(1)(A)(ii)(III), anyone who receives a vaccine authorized under EUA must be informed "of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks." Courts have not interpreted this language, and experts have provided multiple interpretations.⁴

Employers Encouraging, Not Mandating, Vaccines

Some large companies have created policies that encourage, rather than mandate, vaccination, including Unilever, Dollar General (paying employees to get the vaccine), Chobani (offering paid time off for employees to get vaccinated) and Target (offering up to four hours of pay and free Lyft rides to and from appointments). But there can be pitfalls of providing incentives for vaccination:

• Monetary compensation of even $100 may be considered more than nominal.
• Employers considering incentives, such as time off, cash payments or gifts, should review whether such a program may be viewed as discriminatory and penalizes those employees who cannot be vaccinated for religious or disability reasons (i.e., will employers offer same incentives to employees who cannot get vaccinated – for example taking extra training on safety issues).
• The ADA restricts incentives as part of wellness programs.
• Attempting to screen those employees for why they are not vaccinated may lead to impermissible medical inquiries.

Current Trends

Two lawsuits have been filed on the issue of mandating vaccination. A corrections officer in New Mexico argues that a mandate requiring first responders receive the vaccine should be overturned, and educators in California argue that a mandate requiring school district employees receive the vaccine should be overturned. Both argue that employers cannot mandate the COVID-19 vaccines because they were authorized under EUA.

In addition, some states have introduced legislation banning private employers from mandating COVID-19 vaccinations.

Conclusion

Despite guidance from the EEOC that seems to permit employers to mandate that employees receive the COVID-19 vaccine, a number of legal, regulatory and logistical factors may make the mandatory approach a potentially risky one. Employers in the retail space may be on firmer legal ground from a liability risk standpoint if they encourage, rather than mandate, that employees be vaccinated. Although the voluntary approach has pitfalls of its own, it has the potential to sidestep some of the legal and logistical hurdles created by mandating vaccination. Industries highly exposed to COVID-19, such as medical providers, emergency responders and nursing home facilities, may decide there is legal risk doing either, but less risk in mandating vaccines.

Read Holland & Knight's update to this blog, "New OSHA Guidance for Recording Obligations When Mandating Vaccination," May 11, 2021.

Read Holland & Knight's second update to this blog, "IRS Announces Tax Credits for Small Businesses Providing Paid Leave for COVID Vaccine," May 28, 2021.

Read Holland & Knight's third update to this blog, "EEOC Update Clarifies Guidance on Mandating and Incentivizing COVID-19 Vaccination," June 10, 2021.

Read Holland & Knight's fourth update to this blog, "OSHA Updates COVID Guidance for Non-Healthcare Workplaces," July 21, 2021.

Notes

¹ Complex Regulations Push Employers Toward Voluntary Vaccination Programs, Not Mandates

² Mandatory COVID Vaccination Policies in the Workplace: What Employers Must Know

³ What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

⁴ Assessing The Legality Of Mandates For Vaccines Authorized Via An Emergency Use Authorization

DISCLAIMER: Please note that the situation surrounding COVID‑19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.