To Require Vaccinations or Not – That is the Question

The question of whether an employer can require its employees be vaccinated against COVID-19 contains many legal complexities that government agencies, attorneys, HR professionals and, eventually, courts, are and will be grappling with. When considering whether to mandate employee vaccinations, employers should consider the following issues as part of their decision.

As with most employment-related matters, the Equal Employment Opportunity Commission (EEOC) provides a good starting point. The EEOC has issued guidance to employers with its position on mandatory vaccination programs concluding that, in most instances, requiring employees to obtain the vaccine is lawful. In Section K of its Technical Assistance Guide, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws,” the EEOC states employers can require employees be vaccinated so long as certain conditions are met and certain exceptions are not applicable.

One of the first issues addressed by the EEOC’s guidance is whether a vaccine constitutes a medical examination under the Americans with Disabilities Act (ADA). Generally, under the ADA, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” The EEOC concludes a vaccine is not a medical examination because “the employer is not seeking information about an individual’s impairments or current health status.” Thus, because the EEOC does not consider a vaccine to be a medical examination, the usual ADA requirements are not applicable, and employers can proceed with requiring vaccinations (so long as it does not also seek information about the employee’s impairments or health status) unless some other exception applies.

Employers should use caution, however, as questions often asked prior to administration of the vaccine may trigger ADA privacy issues. In particular, the EEOC warns that if employers (or third parties retained by employers) administer the vaccine, certain pre-screening inquiries may implicate the ADA’s precautions against prying into an employee’s potential status as an individual with a disability. As a result, as with any other similar types of questions, an employer must be prepared to establish the inquiries are “job-related and consistent with business necessity.” The EEOC then states that, to ask such questions, the employer must show it has a reasonable belief, based on objective evidence, “that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

There are two instances where the above showing need not be satisfied. First, if vaccinations are required but the employee receives it from a third party, such as their own doctor or a pharmacist unrelated to the employer, then the ADA is not implicated. Second, the EEOC states that the employer does not need to make the above showing prior to asking pre-screening questions if it makes the vaccination voluntary on the part of the employees and the employees have the option not to respond to such inquiries.

Once the employee receives the vaccine, the EEOC states the employer has the right to request proof from the employee and retain such proof in the employee’s confidential medical file, along with the employee’s responses to any pre-screening questions.

Significantly, the EEOC addressed the issue of whether an employee can request an accommodation under the ADA with respect to receiving the vaccine. Should an employer receive such a request, it must engage in the familiar interactive process with the employee to determine whether the accommodation requested is reasonable under the circumstances. For example, would permitting the employee to work remotely because they cannot enter the workplace due to not being vaccinated be a reasonable accommodation under the particular facts and circumstances presented? When conducting this analysis, the employer must follow its usual protocols in determining whether an accommodation is reasonable under the ADA, including whether an undue hardship on the employer is present by providing the accommodation.

Beyond the ADA, the EEOC also addressed the situation where an employee has a sincerely held religious objection to being vaccinated. Under such circumstances, pursuant to Title VII of the Civil Rights Act, the employer must consider whether a reasonable accommodation can be made without posing an undue hardship. The EEOC cautions against doubting an employee’s expression of a sincerely held religious belief, practice or observance, but does state that if the employer has an objective basis for questioning the legitimacy of the employee’s belief, it can request additional information from the employee. Determining whether an employee’s objection qualifies as a sincerely held religious belief – as opposed to a personal preference – is not always straightforward. Employers who are unsure should seek advice of counsel with expertise in this area because the distinction between religious and non-religious beliefs is challenging and highly fact-specific.

In determining whether an employee who has not been vaccinated constitutes a direct threat, particularly to others in the workplace, the EEOC identifies four factors to consider: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.

Employers should consider other potential issues prior to deciding to implement a mandatory vaccine program in their workplace. For example, where the employees are represented by a union, employers are required to negotiate over terms and conditions of employment. Mandating employee vaccines which could lead to possible termination implicates bargaining obligations under the National Labor Relations Act. Employers should review their collective bargaining agreements to determine whether they have the right to implement such a requirement. In the absence of a waiver of the right to bargain over the issue, which most likely does not exist, bargaining will be required.

Employers also should consider the requirement to provide a safe workplace pursuant to the Occupational Safety and Health Act. The OSH Act requires employers to provide a workplace that is “free from recognized hazards” that could cause serious harm or death to employees. Given the severity of COVID-19 and its obvious danger to individuals, employers would be wise to consider their obligation to provide a safe workplace and whether requiring vaccines supports that requirement. Again, consideration should be given to the type of workplace involved and whether the work involved provides a significant opportunity for transmission of the disease in the absence of employees being vaccinated. Although it is not clear whether a violation of the OSH Act would be found if vaccines are not required, an employer can minimize potential liability by issuing such a mandate, as well as ensuring applicable CDC guidelines and internal safety protocols have been followed.

Considerations of vaccination as part of a safe workplace are particularly important because of potential employer liability under state workers’ compensation laws and the absence of an employer liability shield in Congress’ most recent COVID-19 legislation.

In summary, there are many issues for employers to consider in determining whether mandatory COVID-19 vaccines are the right choice for their workplaces. As with any such decision, consultation with legal counsel is advised, as is a review of existing policies and procedures which may be implicated by such a requirement.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.