As the country continues to implement vaccine distribution in phases, employers may deliberate whether to encourage voluntary compliance or mandate employee vaccination.

Governmental Guidance

The Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) have both issued guidance regarding the pandemic. Following the Pfizer vaccine approval, the EEOC promoted guidance for employers regarding employee vaccines in relation to the American Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) regulations. Comparatively, OSHA does not mandate employee vaccinations—their focus is on employee safety from spread and contraction.

EEOC Guidance

The EEOC, which enforces the ADA and Title VII, has issued guidance regarding vaccines in the workplace. New regulations from the EEOC do not prevent employers from making employee vaccinations a mandatory condition but do impose many complications for enforcement.

The EEOC explains an employee may be entitled to a mandatory vaccine exemption based on a disability that prevents the employee from getting the vaccine. The exemption would be recognized as a reasonable accommodation. The employer would be required to grant the accommodation unless it creates the employer an undue hardship. An undue hardship, as defined by ADA, is an action that imposes a significant difficulty or expense in reflection of factors, including an employer's size, financial resources, and operational nature and structure.

The EEOC also states that, under Title VII, employees with genuinely held religious beliefs may be entitled to an exemption from a mandatory vaccination. This too would be recognized as a reasonable accommodation. An undue hardship under Title VII is defined as a “request that results in more than a de minimis cost to the operation of the employer’s business.”

These exemptions and the discrimination risk posed by mandated employee vaccinations leads the EEOC to advise employers to simply encourage vaccination rather than mandate it.

OSHA Guidance

The OSHA directive states employees can refuse any vaccination based on a reasonable belief their underlying medical condition creates a tangible danger of serious illness or death. These employees are also recognized as possibly being protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights. The organization does encourage employers to make complimentary vaccines available to eligible employees or provide information and training on the benefits and safety of vaccines. The guidance also discourages employers from having differing safety standards for vaccinated versus unvaccinated employees.

Employer Considerations

Employers must review multiple considerations prior to implementing a decision to encourage or require employees to receive a COVID-19 vaccine. Employers should consider the following for an evaluation of options:

Undue Safety Burdens

Regardless of a vaccine mandate or encouragement, employers will be challenged to determine and evaluate whether unvaccinated employees pose an undue safety burden to their coworkers. Employers must consider whether precautions can be implemented to protect employees, including:

• Social Distancing
• Employee Mask Requirements
• Telecommute/Remote Arrangements

Exemptions

Any COVID-19 vaccine employee mandate requires employers to prepare for workers’ reasonable ADA or Title VII exemption accommodation. A case-by-case assessment should be performed but could still leave organizations open to legal action should an exemption request be wrongly denied.

Legal Risk Evaluation

Employers should consider potential legal claims if they require employees to be vaccinated. Any employee could attest liability to an adverse vaccine reaction or development of subsequent health problems. Prior to implementation, employers should consult with legal counsel to discuss the implications and preferable action for their organization.

Logistical Considerations

Regardless of whether employers require or mandate COVID-19 vaccination, several logistical elements should be contemplated:

• Will employers have onsite vaccination clinics?
• What vaccine will be used and who will disperse?
• Who will pay for administrative costs for onsite vaccination?
• Who will track compliance for offsite vaccinations?
• Will the employer offer compensation for receiving the vaccine?
• Will the employer offer complimentary time off for employees who have adverse reactions to the vaccine?

For More Information

Do not wait to begin discussions in regard to COVID-19 vaccines. For more information on the COVID-19 pandemic and your risk as an employer, contact one of our team members today.

This article provides general guidance only and may be affected by changes in law or the interpretation of such laws. The reader is advised to consult with legal counsel prior to taking any action based upon this information.

Additional resources that will help your organization return to the workplace:

9 Common COVID-Related Return-to-Work Concerns