Now that the COVID-19 Vaccine is here and available, the question for many employers is whether they can or should mandate it as a condition of employment. As of December 11, 2020, the COVID-19 Vaccine has been authorized for distribution among the United States population. There are three vaccines in the marketplace, Moderna, Pfizer, and Johnson &Johnson. Initially, the vaccine was implemented in phases, due to the limited supply of the vaccine. However, most states now have authorized the vaccine for all adults. The Society of Human Resource Management conducted a survey of employers and employees, they found that 66% say the COVID-19 vaccination is very or somewhat necessary for business continuity; 64% of US workers say they are likely to get the COVID-19 vaccine once it becomes available to them; 55% of US workers report they are very likely to get the COVID-19 vaccine if their employer requires them to do so; and,24% of US workers reported they would balk at getting the herein if their employer requires them to get it.
To encourage employees to receive the vaccine, some employers are offering incentives. Chipotle Mexican Grill, for example, is strongly encouraging their employees to receive the COVID-19 vaccine but will not require it. Instead, the company will cover the costs associated with the vaccine. Dollar General is taking a different approach. With more than 150,000 employees, the retailer is incentivizing staff to be vaccinated by providing a one-time payment equal to four hours of pay if they become vaccinated at a location outside of the worksite.
Despite the incentives offered by some employers to get vaccinated, some employees will still refuse. As such, the Equal Employment Opportunity Commission has issued guidance on this matter, which is of great help. The EEOC has stated that employers may encourage or possibly require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other workplace laws. The EEOC guidance makes it abundantly clear that the COVID-19 vaccine is not a “medical examination” under the ADA. However, the pre-screening questions health providers should ask before administering the vaccine may elicit information about a disability, and thus, if asked by the employer or an employer’s agent/contractor are “disability-related” under the ADA. Thus, to ask such pre-screening questions, the employer would have to show the inquiries are “job-related and consistent with business necessity.” To satisfy this standard, the employer would need a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and thus does not receive the COVID-19 vaccination) will pose a direct threat to the health or safety of himself/herself or others.
If an employee raises a medical or religious objection to the vaccine, an employer is required to engage in the interactive process to ensure it is not in violation of the law. Employers cannot have a blanket rule that all employees must receive the COVID-19 vaccine or be out of a job. If an employee requests an alternative method of screening due to a medical condition, the employer should treat this request as a reasonable accommodation under the law. If the requested change is easy to provide and inexpensive (causes no undue burden), the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if an accommodation is available under Title VII.
EEOC guidelines on mandatory COVID-19 vaccines
On January 15, 2021, the EEOC published the newest version of its Compliance Manual on Religious Discrimination. Title VII defines religion to include “all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. The United States Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs, and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” The sincerity of an employee’s stated religious belief is usually not in dispute and is “generally presumed or easily established.” However, when an employer has an objective basis for questioning an employee’s religious belief, Title VII allows the employer to seek additional supporting information. Anti-vaccine cases have long existed prior to the COVID-19 Vaccine. For instance, in Fallon v. Mercy Catholic Med. Ctr. of Se. Pennsylvania, 877 F.3d 487 (3d Cir. 2017), the Plaintiff’s beliefs did not qualify as religious because he was simply worried about the health effects of the flu vaccine, disbelieved the scientifically accepted view that it is harmless to most people, and wished to avoid this vaccine.
In addition to a religious objection, an employee may raise a medical objection to the COVID-19 Vaccine. An employee who refuses required vaccinations must be supported by a detailed doctor’s recommendation against vaccination for medical reasons. The ADA’s protections from disability-related discrimination apply. In Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35 (3d Cir. 2018), Ruggiero’s doctor recommended not receiving the vaccines because of her medical conditions. The employer terminated Ruggiero for failing to meet their vaccination requirements. The Court held that Ruggiero was entitled to alternative accommodations, and not termination based on her medical conditions that prevent her from being safely vaccinated.
An employer cannot automatically exclude an employee who refuses to receive a vaccination because of a disability. Instead, the employer must determine whether having that employee unvaccinated in the workplace would pose a “direct threat” to health and safety within the meaning of the ADA. In other words, to exclude an employee refusing to take the vaccine, the employer must show that an unvaccinated 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 a reasonable accommodation.”
Strictly based on the EEOC Guidance, an employer will likely prevail on a mandatory COVID-19 policy that conforms to federal laws. However, state-specific issues by regulatory agencies should also be examined. Employers are greatly cautioned that the current COVID-19 Vaccine is still under emergency use authorization. On December 11, 2020, a FDA News Release announced the approval of the first EUA for a COVID-19 vaccine. The FDA may issue an EUA to allow an unapproved vaccine during an emergency when there are no adequate, approved, and available alternatives. For an EUA, the FDA conducts a benefit-risk assessment and if the assessment is favorable, the product is made available during the emergency. However, the vaccine is not FDA-approved and human trials are still ongoing.
Given the newness of the COVID-19 Vaccine and its EUA status, it is highly recommended that employers proceed with caution in mandating the vaccine as a condition of employment. Incentives can be offered to employees so long as they are fair and consistent with the EEOC Wellness Programs regulations. As everyone returns to a somewhat new normal, employers should do their best to ease all employees’ mental stress issues by encouraging the vaccine with constant careful communication, courtesy, and reasonable justification.