Can Employers Mandate A Vaccination For An Employee To Return To Work?
By Donna Pryor and Avi Meyerstein
The coronavirus (COVID-19) has had a huge impact on all industries. From the cost of extra PPE, to testing costs, cleaning expenses, loss of workforce due to illness, and added costs of contact tracing and beyond, employers are spending millions of extra dollars to keep their operations and their teams safely working. Employers are eager for an effective coronavirus vaccine, but there are many questions surrounding vaccination.
As this publication goes to press, we have learned from Pfizer that its preliminary results suggest its vaccine is more than 90% effective in preventing COVID-19. On another positive note, there could be enough of the vaccine for 20 million Americans by January. There are at least 10 other vaccines in the final testing phase.
Who Gets the Vaccine First?
Before any company can ship their vaccines, federal and state governments must give them direction; thus far no direction has been provided. Of course, everyone’s best guess is that healthcare workers and those in high risk categories should receive the vaccine first. Healthy adults ages 30-65 will likely be in the last group to receive the vaccine.
Can Employers Have a Mandatory Vaccination Policy?
Employers are wondering, once the vaccine becomes widely available, if can they mandate a vaccination for an employee to return to work. We expect the Equal Employment Opportunity Commission (EEOC) will provide guidance on this issue once a vaccine is approved.
Similarly, the EEOC provided guidance at the beginning of the pandemic when industries wondered if they could take employee temperatures and require COVID-19 tests before returning to work. In guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” the EEOC answers the question of whether an employer can compel its employees to take the influenza vaccine regardless of their medical condition or their religious beliefs:
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an Americans with Disabilities Act (ADA) disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. * As of the date this document is being issued, there is no vaccine available for COVID-19.
Under the ADA, employers must provide a reasonable accommodation to an employee with a qualified disability. If the reasonable accommodation (in the case not getting a COVID-19 vaccination) would create an undue hardship for the employer, the employer is not required to provide an accommodation.
Here, exposing the workforce to COVID-19 where no vaccine will have 100% efficacy may provide enough support for an undue hardship. Similarly, under Title VII, employers are not required to provide reasonable accommodations where such would impose an undue hardship on the company.
Neither OSHA nor MSHA have provided guidance on COVID-19 vaccinations in the workplace. Many believe a change the country’s administration will result in an emergency OSHA standard on infectious diseases. However, this standard could be specific to healthcare workers and “frontline” employees and will likely not address a vaccine.
Should Employers Have a Mandatory Vaccination Policy?
Based on a September 2020 study by the Pew Research Group, about half of U.S. adults (51%) say they would definitely or probably get a COVID-19 vaccination if it were available today. This intent to get a vaccine has fallen from 72% in May.
About 49% of the adults surveyed say they would definitely or probably not get vaccinated at this time. This survey reflects the public concerns about the safety of the vaccine and the fast development process. However, once the vaccine is in distribution, and if the reports of the first tier of the vaccinated population are positive, people might be less and less reluctant to get the vaccine.
Given the opposition that some have to getting a vaccine, it might be easier for employers to encourage employees to get the vaccine rather than requiring it. Employers could make getting the vaccine easy by paying for it and even offering a location where they can conveniently reserve a spot to get a vaccine.
If employers do mandate that employees get vaccinated, they should be prepared for the burden of a variety of legal challenges: MSHA whistleblower complaints; disability and religious accommodation requests; and union or collective bargaining challenges to name a few. As vaccine distribution nears, employers should begin to discuss these complex issues and implement a strategy or policy.
Donna V. Pryor is a partner at Husch Blackwell LLP. She represents those defending whistleblower complaints and contesting OSHA and MSHA safety citations. Additionally, Pyror offers training and regulatory insights to the firm’s multinational mining, manufacturing and heavy-industry clients. She can be reached at [email protected].
Avi Meyerstein is a partner at Husch Blackwell LLP. He is part of the firm’s Technology, Manufacturing & Transportation team, and focuses his practice on workplace safety and health matters, litigation and complex investigations. He can be reached at [email protected].