The COVID-19 Vaccine Is Here. Can You Require It?

On Nov. 9, 2020, Pfizer made history by presenting preliminary data indicating its new COVID-19 vaccine was over 90% effective.

On Dec. 11, the U.S. Food and Drug Administration issued an “Emergency Use Authorization” allowing Pfizer to immediately begin offering the vaccine. Another 52 pharmaceutical companies currently are in various phases of the race to produce safe and effective COVID-19 vaccines, including Moderna which also should have an Emergency Use Authorization in place by the time you are reading this.

You and your clients have been navigating the array of pandemic-related health and safety requirements. Now you must confront whether you can or should require your employees to get the vaccine to be in your office. On Dec. 16, the Equal Employment Opportunity Commission issued COVID-specific guidance that adheres to prior guidance that mandatory vaccination policies generally are permissible during a pandemic (subject to federal and state law limitations). Mandatory vaccination programs also are not new. Medical providers, for example, routinely require employees to take an annual influenza vaccine.

Employers generally must permit two limited but significant exceptions to any mandatory vaccination policy. Employees who decline to take the vaccine because they have medical conditions that would put them at risk or sincerely held religious beliefs that bar taking the vaccine generally are entitled to request a “reasonable accommodation” in accordance with the Americans with Disabilities Act and under other applicable federal and state laws. The “reasonable accommodations” are intended to enable the employee to maintain an equal opportunity to perform the essential functions of the job or enjoy equal benefits and privileges of employment.

In these circumstances, potential accommodations may include offering an alternative form of the vaccine that does not include objectionable ingredients or ingredients that could trigger an employee’s medical condition (such as a vaccine that does not contain egg, swine, or fetal cell products), increased use of personal protective equipment, modification of duties to remove at-risk activities, or temporary or permanent transfers to other positions or work areas (such as permitting an employee to telework). An employer may deny an accommodation request only if fulfilling it poses an “undue hardship,” as defined under applicable law. As a best practice, employers should consult with an experienced legal practitioner prior to denying requests for mandatory vaccine program accommodations.

In its guidance, the EEOC also addresses unique issues that arise if an employer is providing the vaccinations itself, although those might not be as relevant given the distribution challenges here. In addition, the EEOC has acknowledged that employers may permissibly implement certain medical testing and other screening measures that applicable federal law would otherwise prohibit, given the “significant risk of substantial harm” to others posed by COVID-19.

A clear benefit of requiring the vaccine for all employees in the workplace is the building of confidence and trust in the employer’s efforts to maintain a safe workplace. To do so in a compliant manner, employers should be prepared for the administrative burden involved in implementing a clear, consistent and well-executed policy and should remain flexible to changes and guidance offered by federal and state agencies. Alternatively, employers may choose to encourage rather than mandate the vaccine, which may circumvent some of the administrative hurdles of a mandatory policy and still yield positive results, depending on employees’ willingness to vaccinate and sustain other necessary safety precautions while the virus remains a threat.

For employers considering a vaccination mandate, seven tasks are worth undertaking:

1. Careful consideration and documentation of the business justifications for a mandatory policy and the positions or departments for which the mandatory vaccination program is applicable. Ensure that any vaccine mandate is based upon objective facts and related to job duties and workplace needs, and identify positions or alternative work arrangements that would not require mandatory vaccination.
2. Clearly communicate the process for employees to request accommodations before instituting a vaccination mandate. A thoughtfully written vaccination policy should describe that process or reference existing accommodation processes so employees understand where to turn if they need to ask for an accommodation. Then be prepared to review accommodation requests and engage in what will be a fact-intensive and interactive process. Managers and human resources professionals should be trained to recognize and respond to requests for accommodation, even where the employee does not use the word “accommodation.”
3. The vaccination program should consider all applicable legal requirements, be clearly communicated to employees and be uniformly enforced. To the extent the vaccination is a requirement to perform the employee’s job, employers should consider reimbursement requirements under applicable state law. Also, employers may be obligated to pay employees for time spent getting the vaccination if outside of working time.
4. Any adverse physiological reactions to an employer-mandated vaccine could lead to a workers compensation claim. Employers should review state workers compensation laws and their current employer insurance policies.
5. Where the workforce is unionized, employers must consider any applicable collective bargaining agreements to determine the extent of their duty to bargain with the unions regarding a vaccine program.
6. Any medical information must be kept confidential and maintained separate from an employee’s personnel file.
7. Finally, federal and state authorities are likely to issue guidance that could alter relevant standards under the applicable laws. Employers should stay alert for any such recommendations and adjust their vaccination program accordingly.