By Brian Lerner
Chair, Labor & Employment
As the COVID-19 pandemic unfolds and continues to impact all facets of our lives, we wanted to provide this FAQ answering commons questions we have received from companies. These questions touch on the issue of requiring employees to get the COVID-19 vaccine to return or remain at work.
Can a company recommend employees get a COVID-19 vaccination?
Yes. Asking, on a strictly voluntary basis, that employees get vaccinated will not trigger coverages or protections available under the employment laws. It is critically important that the recommendation truly be voluntary. For example, an employee must answer screening questions to ensure there is no medical reason preventing the employee from receiving the vaccine. A voluntary process would mean that the employee must be free to decline to answer those questions. Of course, this would mean that the employee will not receive the vaccine. If that should occur, then companies cannot retaliate against the employee for declining to answer these screening questions.
Can a company require employees to get a COVID-19 vaccination?
Yes. Guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that requiring employees to get vaccinated to return or remain in the workplace is permissible. The EEOC reached this conclusion based on the notion that the vaccination itself, that is just the act of a shot in the arm, is not considered a “medical examination.” This is important because an act constituting a “medical examination” triggers a number of legal obligations or requirements before being permissible. But as noted below, requiring employees to get vaccinated still imposes certain requirements on companies and still triggers certain protections for employees.
Whether recommending or requiring vaccination, may a company ask or require employees to provide proof of receipt of a COVID-19 vaccination?
Yes. Simply requesting proof of receipt of a COVID-19 vaccination should not elicit information that may implicate employment laws such as those that protect against disability discrimination. The EEOC cautions companies in regard to the potential liability that may come from having follow-up questions to employees. By asking why an employee did not receive the vaccination, the employee may have to share information about his/her medical condition. That in turn would mean that the company has to comply with various requirements under disability laws, including making sure that the questions being asked are “job-related and consistent with business necessity.”
May an employee refuse to get vaccinated based on a general fear or concern about the vaccine itself?
Some employees will have concerns about the vaccine based on a variety of reasons—the speed of approval, unknown possible side effects, uncertainty about effectiveness, general distrust, etc. These types of concerns, even if raised in good faith, are not a permissible basis to refuse to comply with a company’s vaccination requirement. As such, if an employee refuses to get vaccinated based on these general concerns, then a company theoretically would be entitled to end the employment relationship. But companies should not take this dramatic step so quickly. First, the EEOC recommends that companies consider alternatives to separation, including letting the employee work remotely, offer leave under the company’s own leave policy, or allow the employee to work under existing COVID-19 protocols (e.g., masks, social distancing, staggered schedule). Second, companies should be understanding to some of these concerns. While vaccines have been authorized, they still are considered experimental. Further, the vaccines were not tested, understandably, on certain categories of individuals (for example, pregnant women, minors, etc.). Moreover, there could be personal and cultural reasons for some employees to be concerned. Another thing to take into account is that if a group of employees protest vaccination, this arguably may be considered concerted activity protected under the National Labor Relations Act. This would be the case whether or not the employees are part of a union.
If a general fear or concern about the vaccine itself is not sufficient to refuse vaccination, then are there any legally recognized bases for an employee to refuse to get vaccinated?
Yes. While this particular issue evolves daily, there are at least two recognized legal bases for an employee to refuse to get vaccinated. One protected legal basis is the employee’s sincerely held religious belief, practice, or observance would prohibit vaccination. The other protected legal basis is the employee’s medical disability would prohibit vaccination.
How should a company respond to an employee who indicates that s/he is unable to receive a COVID-19 vaccination because of a sincerely held religious belief, practice, or observance?
The EEOC advises that because the definition of religion is broad and protects beliefs, practices, and observances with which a company may be unfamiliar, companies should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. To that end, the company must provide a reasonable accommodation to the employee unless the accommodation would pose an “undue hardship.” Courts have defined “undue hardship” in this context as having more than a de minimis cost or burden on the company. The undue hardship analysis is complex and should be taken in consultation with an attorney.
How should a company respond to an employee who indicates that s/he is unable to receive a COVID-19 vaccination because of a medical disability?
Federal law allows a company to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” But if a vaccination requirement screens out, or tends to screen out, an individual with a medical disability, the company must show that the 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 could not be eliminated or reduced by reasonable accommodation.” To that end, first, the company would need to conduct an individualized assessment of four factors to determine whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. According to the EEOC, a conclusion that there is a direct threat would include a determination that an unvaccinated employee will expose others to the virus at the worksite. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. Second, if the company determines that the employee who cannot be vaccinated due to disability poses a direct threat at the worksite, the company cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship—meaning absent significant difficulty or expense) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. Third, the company will need to determine if any other rights may apply to the employee. For example, an employee may be entitled to perform his/her job duties remotely or take leave under the company’s own leave policy. Fourth, if an employee cannot get vaccinated because of the medical disability and there is no reasonable accommodation possible, the company may exclude the employee from physically entering the workplace, but this does not mean the company may automatically terminate the employee. The EEOC advises that companies and employees will need to engage in a flexible, interactive process to identify accommodation options that do not constitute an undue hardship. This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.
May customers require proof of vaccination to visit their offices/worksites and/or may companies require customers to provide proof of vaccination to visit the offices/worksites?
The same considerations outlined above would apply. There however would be additional considerations in providing/receiving information about vaccinations such as privacy and confidentiality. Companies that choose to mandate vaccinations of their employees should require customer vaccination too. This is because requiring employees to be vaccinated but allowing unvaccinated third parties into the office/worksite could create an issue for companies who claim that unvaccinated employees could not be retained because they pose a direct threat.
If a company wants to require vaccination, what other things should a company consider?
Companies may consider offering cash or other incentives for employees to get vaccinated. This may trigger compliance requirements under benefits laws. There could be workers’ compensation issues arising from employees should they experience side effects that somehow lead to an injury. There also are privacy concerns as companies may be receiving medical information in connection with the vaccination. A vaccination program may require the company to pay the employee for the time spent getting vaccinated. This will greatly depend on whether the vaccination is “integral and indispensable” to the employee’s “principal activity.” If the company has a unionized workforce, then the company may need to review the collective bargaining agreement and otherwise work with the union. In all of these circumstances, companies should work closely with an attorney.
*The answers provided above attempt to address the questions under federal and Florida law. Please be sure to check state and local laws, which may provide additional protections or restrictions. To stay up-to-date on COVID-19, including best practices, please visit https://www.cdc.gov/.