Since the Federal Drug Administration (FDA) authorized the emergency use of the Pfizer and Moderna vaccinations for COVID-19, many employers are debating whether to mandate vaccinations in their workplace, once they become available. With the reality that many people already don’t take social distancing seriously, and given the knowledge that an “emergency use” approval is less stringent than a normal approval process, there is concern for employer liability as well as employee noncompliance if vaccinations are mandated.
To Mandate or Not to Mandate
According to the Equal Employment Opportunity Commission (EEOC), COVID-19 meets the Americans with Disabilities Act and Its Amendments Act (ADAAA) direct threat standard, which allows employers to implement protocols, such as vaccinations, to ensure the safety of employees. Employers should evaluate the threat in their workplace, taking into consideration the work employees complete and the ability to heed recommended guidelines such as social distancing in the workplace. Employers will also need to consider other associated issues, the logistics of a vaccination program, and the following federal laws, when considering a mandate:
- Americans with Disabilities Act and Its Amendments Act (ADAAA) – A reasonable accommodation may be required for employees with a qualifying disability. This could include personal protective equipment (PPE), teleworking, reassignment, a leave of absence, or an exemption to the vaccine mandate, unless the reasonable accommodation is an undue hardship to the employer.
- Title VII of the Civil Rights Act of 1964 – A religious accommodation may be requested by an employee who refuses the vaccination. This should be provided, if the accommodation is a “de minimus” cost or burden to the organization. Employers may require additional verification for the request, as needed.
- Fair Labor Standards Act (FLSA) –Wage and hour laws require employers to pay for a nonexempt employee’s time in obtaining a mandated vaccination if it is during working hours. Although employers should consider paying for mandated vaccinations, if an employee is required to pay and it drops the employee under the minimum wage threshold, the employer must bear the cost of the vaccination.
- National Labor Relations Act (NLRA) – Employers must be cautious about taking any adverse action against employees who discuss or protest vaccinations or other COVID-related policies, as both union and nonunion employees have the right to engage in concerted activities. If there is a union, the employer should review the collective bargaining agreement and consult with the union prior to implementing any policies and/or making any vaccination-related decisions.
- Genetic Information Nondiscrimination Act (GINA) – Employers should be careful not to ask pre-screening questions that disclose genetic information during an employer-mandated vaccination program. These questions would not be legal under GINA.
- Occupational Safety and Health Act (OSHA) – Employers should be careful not to discipline employees for raising workplace safety concerns as employees are protected against retaliation for expressing these concerns. Any discipline for performance should have clear documentation for the performance so the employer won’t be suspected of retaliation.
There may be state or local anti-discrimination laws that go beyond federal laws that would be cause for a reasonable accommodation, or may define undue hardship in a more rigorous manner.
Employers have expressed concern for potential liability if employees have an adverse reaction or injury at the vaccination site. These would most likely be covered under state workers’ compensation benefits. The Public Readiness and Emergency Preparedness Act (PREP Act) may also protect employers mandating vaccinations, although adverse reactions or injuries would be considered a work-related illness for OSHA-related reporting.
Under the premise of the FDA emergency use authorization, employees may refuse to be vaccinated. So, what happens if an employee who is not eligible for a reasonable accommodation refuses to be vaccinated? It may be in the employer’s best interest to work with the employee to arrange a low-cost accommodation, such as changing the employee’s work hours or work station location. Employees may also be excluded from the workplace until the pandemic is over or until they receive the vaccination. Consistency is the key in the application of any pre-determined protocol. Therefore, if an employee who is a low performer is terminated for refusing the vaccination, a high performer would also need to be terminated for refusing the vaccination.
Employers may consider encouraging voluntary vaccinations by providing education on the benefits of vaccines and the correlation between vaccinations and a safe workplace, allowing employees to ask questions and express concerns, providing ways for employees to receive the vaccine, paying for any expenses, and providing paid time off for recovery. Incentives such as gift cards may also help, but perhaps the biggest encouragement for voluntary participation would be for management to be vaccinated first?
Employers may not be immune to risks even if they choose not to mandate the vaccination, especially if they have not carefully followed the Centers for Disease Control’s (CDC’s) and the Occupational Safety and Health Administration’s (OSHA’s) guidelines. There have already been claims filed against employers for perceived violations of the OSHA’s General Duty Clause that states, “Each employer shall furnish to each of his employees’ 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 to his employees.” (29 U.S.C. § 654, 5(a)1).
Recommendations for Employers in the Decision-Making Process
Employers are encouraged to consider the following questions when making the decision as to whether or not vaccinations are mandated in the workplace:
- Is the workplace in compliance with CDC and OSHA guidelines?
- Is there is a direct threat which would necessitate mandating vaccinations for all or some employees? The decision may be made that some employee classifications should be mandated and other employee classifications should not be mandated.
- Do clients, customers, and vendors have requirements that would affect the decision to mandate?
- Is there a union collective bargaining agreement that may apply?
- Should vaccinations be given in-house or by a third-party health care provider or pharmacy?
- If requiring proof of vaccination, is dialogue with employees compliant with the ADAAA?
- What accommodations under the ADAAA and Title VII of the Civil Rights Act may be made?
- What happens when a requested reasonable accommodation is an undue burden for the organization and an employee’s continued employment poses a direct threat in the workplace?
- What is the best timing for vaccinations to occur? Will any paid time off be provided for side effects?
- How will employee concerns be addressed?
- What are the consequences if an employee refuses to be vaccinated?
- Are the employer’s confidentiality standards as they relate to COVID-19 in compliance with the Health Insurance Portability and Accountability Act (HIPAA)?
- What internal and external documentation is needed and what is the document retention policy?
- Are front-line managers trained to apply policies and procedures consistently, to recognize when an employee makes a request for accommodation, and to complete documentation accurately?
One of the many “unknowns” is how long a vaccination will protect against COVID-19. Therefore, processes and procedures for re-vaccinations will need to be considered and employers should keep up-to-date on current and new legislation to ensure they are in compliance. Employers may be glad to know that, while the world is evolving due to the COVID-19 pandemic, pressure to mandate vaccinations may decrease with time as they may be mandated by external forces, e.g., airlines, fitness centers, etc., unrelated to the employer.
For additional information on the topic of whether or not an employer should or should not mandate vaccinations in the workplace, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant