Required COVID-19 Vaccinations for Employees? Not so Fast!

The FDA just authorized Pfizer’s COVID-19 vaccine for emergency use. Given this exciting development, employers ask whether they can require employees to take the vaccine as soon as possible. Although the EEOC has acknowledged that the pandemic meets the ADA’s “direct threat standard” by posing a “significant risk of substantial harm,” mandatory COVID-19 vaccines are not currently sanctioned by the EEOC or any other federal agency. Vaccinations present unique issues for both private and public sector employers and require careful legal consideration. No employer should implement a vaccine policy without consulting legal counsel and analyzing the following issues:

• Reasonable Accommodations. Although the analysis differs under each statute, the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) require employers to provide reasonable accommodations to employees who have medical or religious objections, respectively, to receiving the vaccine unless such accommodations cause the employer undue hardship.
• OSHA and Whistleblowers. The Occupational Safety and Health Act (“OSHA”) allows covered employers to mandate some vaccinations for employees, but provides an exception based on OSHA’s whistleblower provisions for an employee who refuses a flu vaccine because of the employee’s reasonable belief that they have a medical condition that creates a real danger of serious illness or death.
• Impact of the Political Climate. An August 2020 Gallup poll found that approximately one-third of Americans did not plan to receive the COVID-19 vaccine. Social media is rife with conspiracy theories originating from across the political spectrum. Be prepared to manage requests for accommodations pointing to such conspiracy theories. Also, be prepared to face employee backlash given the high number of individuals who do not wish to receive the vaccine – for whatever reason.
• Title VII and Disparate Impact. There is also a potential Title VII issue if it can be shown that the vaccine requirement has a disproportionate adverse effect on a protected class.
• Workers’ Compensation. If the employer requires employees to take the vaccine and the employee has an adverse reaction, it is possible the employee could have a claim under the relevant state’s workers’ compensation statute.
• Compliance with the NLRA. Covered employers should remain mindful that the National Labor Relations Act (“NLRA”) could protect groups of union or non-union employees that engage in protected, concerted activity by refusing to take the vaccine. Employers with a unionized workforce probably will receive a request for union negotiations prior to implementation of any  vaccination program.
• FLSA Concerns. Vaccine policies present a number of issues under the Fair Labor Standards Act (“FLSA”), such as who is responsible for paying for the vaccine and that decision’s impact on minimum wage as well as whether time spent getting the vaccine is compensable.
• State and Local Government Employers. While subject to many of the same statutory obligations and limitations as their private sector counterparts, governmental employers must also remain mindful of certain federal and state constitutional issues potentially implicated – both directly and indirectly – by a mandatory vaccination policy.

As the vaccine distribution process continues, we will provide updates and more detailed suggestions. If you have any questions or would like to discuss the issues in greater detail, please  contact us directly because this general summary is not legal advice about any specific facts or circumstances which will arise.