THE DELTA VARIANT
By Brian Lerner
Chair, Labor & Employment
The COVID-19 Delta Variant has fueled an exponential rise in cases. Due to the highly contagious nature of the Delta Variant (spreading 55% faster than the original COVID strain), many companies are reconsidering whether to mandate vaccination or disclosure of vaccination as a condition of employment. With companies considering changes to their COVID-19 policies, we wanted to provide this FAQ answering commons questions we have received from companies in recent weeks.
Can a company make it mandatory that employees get a COVID-19 vaccination as a condition of employment?
Yes. Guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that requiring employees 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.
If not making vaccination mandatory, then can a company offer an incentive to employees for voluntarily receiving a vaccination?
Yes. Companies may consider offering cash or other incentives for employees to get vaccinated. Companies however have to be careful that the incentive is not so substantial that it could be considered coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
If a company wants to require vaccination, what other things should a company consider?
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—especially in the case of mandatory vaccination. 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.
If not mandating vaccination, then can a company ask or require employees to provide proof of receipt of a COVID-19 vaccination?
Yes. An employer may ask or even require employees to provide proof of receipt of a COVID-19 vaccination. 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.”
If not mandating proof of vaccination, then can a company offer an incentive to employees for voluntarily disclosing proof of vaccination?
Yes. Because requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination is not a violation of the law, a company may offer an incentive to employees to voluntarily provide documentation or other confirmation. The company must be sure to keep confidential any vaccination information received.
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.
How should a company respond to an employee who indicates that s/he is unable to receive a COVID-19 vaccination due to pregnancy?
If an employee seeks an exemption from a vaccine requirement due to pregnancy, the company must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.
What if a customer requires that a company’s employees be vaccinated?
An employee’s individual vaccination status is confidential medical information and thus cannot be disclosed to customers. To avoid violating privacy interests, a company may tell the customer the percentage of its workforce that is vaccinated employees. Alternatively, the employee is free to share his/her vaccination status to the customer. Companies however should check state and local laws. Many state and local governments have enacted restrictions, outside the employer/employee context, on requiring vaccination or providing proof of vaccination. For example, Florida enacted a law that prevents businesses from requiring that patrons or customers provide documentation certifying COVID-19 vaccination or post-infection recovery to enter or obtain service from a business in Florida. This law however does not prohibits businesses from using screening protocols or requiring masks.
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/.