Locke Lord QuickStudy: Vaccinations: Thoughts for Employers

As vaccines become available to employees, what do employers need to know, what should ‎they do, and what should they avoid?‎

Employers may establish legitimate health and safety requirements that are job-related and ‎consistent with business necessity, including immunization requirements. While we await further ‎guidance from the CDC, EEOC, and other federal, state, and local agencies, we can presume that ‎employers generally will be entitled to require the COVID-19 vaccination, subject to certain legal ‎restrictions. As an initial matter, however, employers may not want to require a COVID-19 ‎vaccine until it is proven safe and effective. Accordingly, employers should consider waiting to ‎mandate the vaccine until the FDA and/or CDC have authorized a COVID-19 vaccine, as ‎opposed to the current Emergency-Use Authorization.‎

In addition, employers should provide medical and religious exemptions from any vaccination ‎requirement. The Americans with Disabilities Act of 1990 (“ADA”) legislates that employers ‎exempt from mandatory vaccination requirements ‎an employee whose disability prevents him/her ‎from safely receiving the vaccine. If an employee claims he or ‎she cannot safely receive a vaccine ‎due to a disability, the employer should engage in a good-faith interactive process to ‎determine ‎whether the purported disability comports with the ADA and entitles the employee to an ‎exemption and/or another type of accommodation (e.g., working remotely or wearing a face mask ‎in lieu of receiving a vaccine). Title VII of the Civil Rights Act of 1964 (“Title VII”) requires ‎employers to provide an exemption and/or other accommodation if receiving a vaccine would ‎‎violate an employee’s “sincerely held religious belief.”  Under both the ADA and Title VII, an ‎employer need not provide an ‎accommodation if doing so would pose an undue hardship on the ‎employer.  ‎

While these legal considerations will be in play when it comes to vaccines for employees, so will ‎practical factors. First, many employees may resist being vaccinated. Based on current polling ‎information, forty percent (40%) of vaccine eligible employees may resist.‎¹ 

In that instance, employers have choices. On the one hand, absent one of the legal ‎accommodation issues discussed above or a contractual impediment, employers may choose to ‎terminate the employment of employees who decline to be vaccinated. On the other hand, ‎employers may elect to retain employees who refuse to be vaccinated. However, doing so on a ‎selective or case-by-case basis may raise significant issues. For example, are employees in ‎comparable positions and protected categories being treated similarly? Employers may find a ‎slippery slope ahead if some employees in a protected category are fired while others are ‎retained. Of course, employers may require retained employees who reject vaccinations to utilize ‎PPE and abide by other safety measures, such as frequent hand washing and social distancing ‎that vaccinated employees may no longer require. ‎

And it’s not that simple. We know that none of the impending vaccines will be 100% effective.‎² As a result, 1/20 vaccinated employees may still be exposed to the virus.‎

Another reality is that no one knows for how long the vaccines will be effective.‎³ Employers will ‎need to anticipate these issues and decide whether their workforces should continue to abide by ‎the COVID-related safety measures already implemented or risk that some of their vaccinated ‎employees will be infected.‎

What should employers do?‎

Employers should stay up to date on guidance from the CDC, EEOC, and other federal, state, ‎and local agencies. Subject to any forthcoming guidance, employers should consider requiring ‎vaccinations of all employees (with exceptions; see above) and begin preparations in the event it ‎chooses such a mandate. In addition, employers should provide a reasonable time frame for ‎employees to be vaccinated. At the end of the period by which vaccinations are required, ‎employers should require either written evidence of vaccinations having been administered or a ‎statement why employees were not vaccinated. In the meantime, employers will need to decide ‎whether to terminate all non-vaccinated employees or require safety measures of those not ‎vaccinated while continuing to implement their current safety requirements. ‎

Employers should also consider allowing those who refuse to be vaccinated to (continue to) work ‎remotely and to require re-vaccinations as indicated by CDC and local authorities. Employers ‎also need to adopt and distribute policies reflecting their approach to vaccinations.‎

What should employers not do?‎

First, employers should avoid treating employees in protected categories differently. Second, ‎they should pay close attention to the ADA and Title VII issues discussed above. Lastly, it may ‎be a year or more before epidemiologists learn how long vaccines will remain effective.‎⁴ Because ‎not everyone will be vaccinated and the length of the efficacy of vaccinations is unknown, ‎COVID may be with us for quite some time. Consequently, employers will need to consider ‎these issues for not just the immediate future, but for the next year and possibly longer.‎