Now That Vaccine Distribution Has Begun, What Issues Do Employers Face?

by

Over the course of 2020, American employers have been diligently working to navigate through many workplace issues caused by COVID-19. With the pandemic’s end finally in sight thanks to the recent FDA approval of the Pfizer and ModernaCOVID-19 vaccines, those same employers now must start preparing for critical questions that come with the availability of a vaccine.

Can Employers Require Employee Vaccination?

Generally, private employers can mandate employee vaccination for the benefit of the business, other employees, or customers.[1] A private employer may have a duty to require vaccinations depending upon several factors, including employee/customer interaction, vulnerability of employees and customers, and the workplace environment.

Days after the first doses of the COVID-19 vaccine were administered, the Equal Employment Opportunity Commission released guidelines indicating that employers can require that employees get vaccinated as a condition of going to work.[2] The guidelines also indicate that specific impacted laws, such as the Americans with Disability Act and Rehabilitation Act, continue to apply as long as they are in accordance with guidelines and suggestions made by the Center for Disease Control or state and local public health authorities.[3]

In the past, private, non-healthcare employers have generally not imposed vaccine requirements, despite few legal barriers to doing so.[4] Those industries more at risk—like the healthcare industry—have a stronger argument for requiring the vaccine. Pursuant to recommendations from professional organizations, health care facilities began to privately mandate internal vaccination requirements around 2005.[5]

Despite no federal vaccination requirements for civilian health care workers, the Centers for Medicare & Medicaid Services has advised health care professionals to “[set] an example by getting yourself vaccinated” due to their important role as health care providers.[6] However, those industries that are more office-based may be able to allow their employees to make the choice.[7] The choice of whether an employer will require employee COVID-19 vaccinations or not may turn on specific business issues, some unique to each employer, as well as taking into account specific employee circumstances—such as employee disability or religious views. The recent EEOC guidelines give employers the ability to decide whether or not they should mandate the vaccine in their workplace, however, the EEOC does not guarantee that they will shield employers with favorable decision if an employee brings an action as a result of an adverse employment action related to a vaccine mandate.[8]

Employer Liability

Another issue that employers must contemplate is whether they can be held liable for not requiring a vaccination. The Occupational Safety and Health Administration (“OSHA”) strives to provide “safe and healthy working conditions for working men and women[.]”[9] The General Duty Clause of Occupational Safety and Health Act ( “OSH Act”) requires employers to provide “a safe and healthful workplace that is free from serious recognized hazards.”[10]

Employees in workplaces that do not require the vaccine could allege that their employer has failed to abide by OSHA and the OSH Act should the employee believe that low vaccination rates in the workplace created an unsafe or unhealthy environment.[11] The employee may be able to meet this burden if the conditions at the workplace make transmission between employees and/or customers likely.[12] If it is found that the employer created an environment where the risk of contracting the virus is a hazard under OSHA, the employer has an obligation to eliminate the hazard.[13]

Under a common law negligence claim, the employee’s recovery may be limited or barred under the doctrine of avoidable consequences or comparative fault, which will vary state by state. The clearest argument would be that the employee could have protected themselves from the virus by getting their vaccination on their own. It, then, will be difficult for an employee to show the employer’s decision to not require vaccination was the proximate cause of the employee’s illness. The risk of liability for a customer or client contracting a virus is small for most businesses.[14]

It seems unlikely that courts will hold that an employer also has a duty to protect customers from vaccine-preventable diseases. Courts will consider the extent to which customers and clients have a responsibility for protecting themselves. Moreover, courts will struggle to prove that a customer or client contracted a vaccine-preventable disease from a particular business. Third parties who are not customers or clients but visit an employer site may have similar issues bringing causes of action against an employer who fails to require employee vaccinations. An employer can be held liable by an employee, customer, or client for failure to require employee vaccination, but it will depend on their area of work, the workplace environment, federal and state regulatory compliance, and their state’s common law.

Special Considerations: Disability and Religion

Some employees will also require specific attention from their employers when handling the COVID-19 vaccination. The United States Equal Employment Opportunity Commission, otherwise known as the EEOC, classifies employees with “a physical or mental impairment that substantially limits one or more major life activities,” as having a “disability” under the American with Disabilities Act (“ADA”).[15]

The EEOC has given guidance regarding a flu shot requirement, indicating that employers must provide “reasonable accommodations” to employees with disabilities that prevent them from getting a vaccine.[16] Under the ADA, “reasonable accommodations” is defined as “a change in the work environment that allows an individual with a disability to have equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.”[17]

Further, a “reasonable accommodation” provides an “undue hardship” if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.[18] The EEOC indicated that vaccination does not constitute a “medical exemption” under the ADA that would require an employer to show “it is job-related or consistent with business necessity.”[19]

The Centers for Disease Control and Prevention still recommends asking health screening questions before administering the vaccine to ensure there is not medical reason preventing a person from receiving the vaccine. The questions would be required to be a “medical inquiry” that would meet the “business necessity” standard.[20] The employer can avoid this standard if it requires employees to get vaccinated through their own means.

What this would all look like in practice is still uncertain. Workplaces with a traditional office-setting with work-from-home capabilities are likely better suited to handle this issue, allowing employees whose disability prevents them from receiving the vaccine and working in-office, to continue working from home. Under the ADA, the employer can still request the employee to show the difficulty or issue that the vaccination would cause, or the disability preventing their compliance with a potential COVID-19 vaccine requirement.

Similarly, those with religious exemptions under Title VII of the Civil Rights Act of 1964 must also be reasonably accommodated by the employers.[21] However, under Title VII, the employers with an objective basis for questioning the exempt’s employees sincerely held beliefs may request supporting information from the employee. Courts have held that a person’s religious belief “must be handled with a light touch, or judicial shyness.”[22] Further, the courts are “forbidden” to enter into the realm of religious inquiry, instead electing to accept a plaintiff’s religious assertions.[23] This essentially means that workplace issues with employees with religious exemptions for failing to take the COVID-19 vaccine are harder to overcome. Employers can seek third-party verification to determine legitimacy of the employees strongly held beliefs.[24]

Considerations for Best Practices

Minimal guidance has been given by the Federal Government regarding the employer protocol with the COVID-19 vaccine and the best practices for instituting policies and procedures surrounding vaccines. Employers will likely be able to determine whether they will require their employees to be vaccinated. Unionized employers will likely be required to address collective bargaining obligations before vaccine policies are implemented in their workplace.[25]

Employers in industries where their employees are interacting with more at-risk clients will likely see priority distribution of the vaccine and less pushback by their employees on the need for the vaccine. Businesses that cater to customers who are pregnant, parents or caregivers, or children may consider mandatory vaccination for their employees in benefit of their clients.

Although there is minimal guidance right now, the COVID-19 vaccine was just recently approved by the FDA and the transition from the Trump Administration to the Biden Administration is likely to see many changes in how employers should handle the vaccine in their workplace. Regardless of who is giving the guidance, they will have to consider all the legal issues that may arise from the distribution of the COVID-19 vaccine.

[1] “Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks” Teri Dobbins Baxter. 2017 Utah L. Rev. 885, 918.

[2] “What You Should Known About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws.” United States Equal Employment Opportunity Commission. December 16, 2020. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[3] Id.

[4] Id.at 919.

[5] “Vaccine Law in the Health Care Workplace” Brian Dean Abramson. Vol. 12, No. 3, J. Health & Life Sci. L. Pg. 22.

[6] Seasonal Influenza and Diabetes Awareness, CTRS. FOR MEDICARE & MEDICAID SERVS. (Nov. 20, 2014), https://www.cms.gov/Medicare/Prevention/PrevntionGenInfo/Health-Observance-Mesages-New-Items/2014-11-20-Seasonal-Flu.html

[7] “When Employers Can Require COVID-19 Vaccinations” Society for HR Management, Allen Smith, December 8, 2020 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-mandatory-vaccinations.aspx

[8] “What You Should Known About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws.” United States Equal Employment Opportunity Commission. December 16, 2020. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[9] See generally, Occupational Safety and Health Act of 1970.

[10] Id.

[11] “Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks” Teri Dobbins Baxter. 2017 Utah L. Rev. at 922.

[12] Id.

[13] Id.; see also 29 U.S.C. § 654 (2011)

[14] “Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks” Teri Dobbins Baxter. 2017 Utah L. Rev. 922.

[15] See generally, Americans with Disabilities Act of 1990. Public Law 101-336. 108th Congress, 2nd session (July 26, 1990).

[16] See generally, “Pandemic Preparedness in the Workplace and the Americans With Disability Act” United States Equal Employment Opportunity Commission, March 19, 2020.

[17] See generally, “Pandemic Preparedness in the Workplace and the Americans With Disability Act” United States Equal Employment Opportunity Commission, March 19, 2020; see also 29 C.F.R. pt. 1630 app. § 1630.2(o).

[18] Id.; See also 42 U.S.C. § 12111(10); 29 C.F.R. pt. 1630 app. § 1630.2(p).

[19] “What You Should Known About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws.” United States Equal Employment Opportunity Commission. December 16, 2020.

[20] Id.

[21] See generally, EEOC v. Firestone Fibers & Textiles Co., 515 F.3 307, 312 (2008).

[22] See Tagore v. United States, 735 F.3d 324, 328 (2013).

[23] Id.

[24] “When Employers Can Require COVID-19 Vaccinations” Society for HR Management, Allen Smith, December 8, 2020 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-mandatory-vaccinations.aspx

[25] Id.

Get Updates By Email

Blog Contributors