Should Employers Require That Employees Receive a COVID-19 Vaccination as a Condition of Employment? – N.Y.U. Journal of Legislation & Public Policy

By: Karen Zwickel

March 5, 2021

I. Introduction

As COVID-19 vaccines become widely distributed, many employers will likely consider implementing a mandatory COVID-19 vaccination policy as a condition to employment. In fact, some employers, including restaurants and airlines, have already indicated their plan to adopt a mandatory vaccination policy.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance indicating that it is lawful for employers to adopt a mandatory COVID-19 vaccination policy as long as the policy contains procedures to protect the legal rights of people with disabilities and sincerely held religious beliefs.¹ A mandatory vaccination policy can play an important role in employers’ fulfilling their obligation to promote a safe working environment for employees. However, a mandatory policy can lead to several legal and practical challenges and is likely to face severe pushback from at least some employees. Consider, for example, a Gallup Poll conducted from January 25 to 31, 2021 finding that 29 percent of U.S. adults said they would not get an FDA approved COVID-19 vaccine if it was available to them right now for free.² Because of the legal and practical challenges for employers in implementing a mandatory vaccination policy, the best approach may be to not mandate the vaccine but instead make it as easy as possible for employees to be vaccinated.

II. Employers’ Obligation to Provide a Safe Working Environment

Many employers may fear liability under the Occupational and Safety Health Act (OSHA) if they do not require employees to be vaccinated. Under OSHA, covered employers have a legal obligation to provide “safe and healthful working conditions” for employees.³ Because COVID-19 is highly transmissible, working in close proximity to other people in a poorly ventilated environment can lead to workers’ getting sick. Therefore, employers may face legal challenges for violating OSHA by failing to adopt a mandatory vaccination policy if employees consider the workplace unsafe.⁴

This fear would be well founded. As of February 11, 2021, OSHA had received 13,464 federal and 45,536 state COVID-19 related complaints. Additionally, if state and/or local public health authorities issue guidance that employers may not permit unvaccinated employees to return to the physical workplace, there is a greater likelihood of claims being raised under OSHA unless employers adopt a mandatory vaccination policy.⁵

II. Challenges Related to the Americans With Disabilities Act (ADA)

The ADA allows employers to have a qualification standard, such as a mandatory vaccination requirement, even though the qualification standard could potentially screen out individuals with a disability, if the employer can show that an unvaccinated individual would pose a direct threat due to the “significant risk of substantial harm to the health and safety of others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC has declared that COVID-19 infections pose a “direct threat” in the workplace.⁶

However, the EEOC guidance further states that even where an employer concludes that the physical presence of an unvaccinated employee poses a direct threat, “the employer 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) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” The EEOC guidance further states that reasonable accommodations may include telework or taking leave under the Families First Coronavirus Response Act or under the Family and Medical Leave Act of 1993.

Employers face potential liability under the ADA and/or state discrimination laws if they discipline or terminate an unvaccinated and disabled employee without fully considering reasonable work alternatives.⁷ Additionally, employers could be liable for asking about an employee’s disability. According to the EEOC guidance, if the employer asks questions beyond showing proof of a vaccination, such as why the employee did not receive a vaccination, the employer could face liability because the inquiry may elicit information about a disability. Potential legal claims employees could bring include disparate treatment discrimination, failure to accommodate disability, failure to engage in the interactive process, and retaliation.⁸

III. Challenges Related to Title VII of the Civil Rights Act of 1964

Employees may also challenge a mandatory vaccination policy on religious grounds under Title VII. The EEOC states that once an employer is on notice that an employee’s sincerely held religious beliefs prevent her from being vaccinated, the employer must provide a reasonable accommodation for the religious belief unless it would impose an “undue hardship.”

Reasonable accommodations could include working from home, or if the employee must work in the office, providing the employee with a separate area where they do not impose a “direct threat to others” so long as that does not result in an “undue hardship.” “Undue hardship” under Title VII is defined as more than a de minimis cost or burden to the employer.⁹ The EEOC states that “undue hardship” includes “significant difficulty or expense.”

Employers may face liability if they do not provide an employee who raises a religious objection with a reasonable accommodation when one clearly exists. For example, an employer could have difficultly claiming an employee needs to work in person if it has been operating successfully with that employee working remotely.¹⁰ On the other hand, employers such as restaurants or gyms may have a good argument that there is an “undue hardship” in accommodating employees with religious exemptions because any accommodation in the workplace is likely to increase the spread of infection among their customers and employees.¹¹

Employers may also face legal liability for inquiring into employees’ religious beliefs. The EEOC guidance states that the employer should assume the employee’s request for a religious accommodation is “based on a sincerely held religious belief.” The EEOC notes, however, that if the “employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, practice, or observance,” the employer can request additional information. Depending on the jurisdiction, such an inquiry could also subject an employer to potential liability under state privacy laws.¹²

Employers face potentially large damage awards or settlements for not accommodating an employee’s religious objection.¹³ For example, during the H1N1 flu pandemic, some plaintiffs who challenged a mandatory vaccination policy on religious grounds received settlements ranging from $74,000 to $300,000.¹⁴

IV. Challenges Related to Workers Compensation Claims

Workers’ compensation claims “cover injuries that are reasonably related to the job.”¹⁵ Therefore, if employers require a COVID-19 vaccination as a condition of employment, and the employee has an adverse reaction to the vaccine with serious health consequences, the injury could be deemed “compensable” under state workers’ compensation statutes.¹⁶

V. Challenges Related to Unions

If employees are represented by a union, employers will most likely need to negotiate a mandatory vaccination program. Unions have asserted that employer vaccination policies are a mandatory subject of bargaining.¹⁷ The first step is to determine whether the collective bargaining agreement allows for a mandatory vaccination policy.¹⁸ If union employees’ contract does not specifically discuss vaccinations, companies may have to negotiate with unions before implementing a mandatory policy.¹⁹ One labor law expert stated that “[i]f you unilaterally implement a mandatory vaccine policy when it’s not been addressed in your current collective bargaining agreement, that may lead to a successful unfair labor practice charge against the employer.”²⁰

VI. Conclusion

Employers wishing to adopt a mandatory vaccination policy have a difficult choice to make. They face potential legal liability under OSHA for not adopting a mandatory vaccination policy and they face several potential legal and practical challenges for adopting one. The best approach may be to not mandate the vaccine, but instead make it as easy as possible for employees to get vaccinated. This could include offering time off, giving a bonus to employees who get vaccinated, and offering vaccinations onsite. Employers should also assess safety measures for employees who do not want to be vaccinated or cannot be vaccinated for medical reasons, including mandating masks, allowing for remote work, or creating socially distanced workspaces.

A mandatory vaccination policy may be seen as limiting employees’ personal health care choices. It also exposes employers to potential legal claims and imposes substantial administrative burdens of tracking compliance and exemption requests.²¹ Not requiring vaccinations also makes sense because being vaccinated by itself may not be sufficient to create a safe working environment. It is not yet known whether a person vaccinated with the two mRNA vaccines from Pfizer and Moderna can transmit the virus to others.²² Therefore, employers cannot rely on vaccinations alone to keep workers and customers safe.

However, employers such as airlines and restaurants—who may have no choice but to adopt a mandatory policy to keep employees and customers safe—should be proactive. Employers should be familiar with the EEOC guidance and any applicable state and local laws.²³ Additionally, employers should plan for the possibility of giving employees time off after being vaccinated and clearly explain their vaccination policy, including deadlines, how to request an exemption, and the penalty for not being vaccinated.²⁴

Karen Zwickel, J.D. Class of 2021, N.Y.U. School of Law

Suggested Citation: Karen Zwickel, Should Employers Require That Employees Receive a COVID-19 Vaccination as a Condition of Employment?, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021)

1
Robert S. Nichols & Amy Karff Halevy, EEOC Says Employers May Mandate COVID-19 Vaccinations — Subject to Limitations, The National Law Review (Jan. 20, 2021), https://www.natlawreview.com/article/eeoc-says-employers-may-mandate-covid-19-vaccinations-subject-to-limitations.
2
See also Mike Stobbe and Hannah Fingerhut, Poll: A Third of US Adults Skeptical of COVID-19 Shots, ABC10 (Feb. 10, 2021), https://www.abc10.com/article/news/health/coronavirus/vaccine/poll-says-third-of-us-adults-skeptical-of-covid-19-shots/507-0356c71b-f058-416b-af6f-b04697d2a559 (Associated Press-NORC Center for Public Affairs Research poll found that fifteen percent of Americans are certain that they will not get vaccinated and seventeen percent of Americans say they probably will not be vaccinated); Stephanie Ebbs, More Americans Say They Plan to Get COVID-19 Vaccine as Soon as Possible: Poll, ABC News (Feb, 26, 2021), https://abcnews.go.com/Politics/americans-plan-covid-19-vaccine-poll/story?id=76112849 (Kaiser Family Foundation poll found that one in five Americans are reluctant to get a COVID-19 vaccine); Julia Manchester, 41 Percent Say They are Not Willing to Receive Coronavirus Vaccine, The Hill (Mar. 1, 2021), https://thehill.com/policy/healthcare/541044-41-percent-say-they-are-not-willing-to-receive-coronavirus-vaccine (The Harvard CAPS-Harris poll found that forty-one percent of voters said they are not willing to get the coronavirus vaccine).
3
29 U.S.C. § 651(b)
4
Allen Smith, When Employers Can Require COVID-19 Vaccinations, SHRM (Dec. 8, 2020) https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-mandatory-vaccinations.aspx.
5
Id.
6
Christine Lehmann, Your Boss May Require You to Get a COVID-19 Vaccine, Web MD Health News (Dec. 29, 2020), https://www.webmd.com/vaccines/covid-19-vaccine/news/20201229/your-boss-may-require-you-to-get-a-covid-19-vaccine
7
Seth L. Neulight et al., Mandatory Vaccination Programs: May Employers Stick It to Their Employees?, Nixon Peabody (Dec. 23, 2020), https://www.nixonpeabody.com/en/ideas/articles/2020/12/23/mandatory-vaccination-programs-may-employers-stick-it-to-their-employees.
8
Id.
9
See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)
10
See, e.g., Daniel Wiessner, Q&A: Kasowitz Partner Says Employers Can Likely Mandate COVID Vaccinations—But Will They?, Reuters Legal (Dec. 7, 2020), https://bit.ly/36TIBml.
11
Debbie Kaminer, Can an Employee Object to Mandatory COVID-19 Vaccines on Religious Grounds?, Penn Live (Feb. 7, 2021), https://www.pennlive.com/opinion/2021/02/can-an-employee-object-to-mandatory-covid-19-vaccines-on-religious-grounds-opinion.html.
12
Legal and Practical Considerations for Employers Weighing COVID-19 Vaccination as a Condition of Continued Employment, Jones Day (Dec. 2020), https://www.jonesday.com/en/insights/2020/12/legal-and-practical-considerations-for-employers-weighing-covid19-vaccination.
13
Neulight et al., supra note 7.
14
Kaminer, supra note 11.
15
Christine Lehmann, supra note 6.
16
Id.; see Neulight et al., supra note 7.
17
Nixon Peabody, supra, note 7.
18
Frank T. Mamat, Potential NLRA Impacts of a Mandatory COVID-19 Vaccination, The National Law Review (Jan. 5, 2021), https://www.natlawreview.com/article/potential-nlra-impacts-mandatory-covid-19-vaccination.
19
See Alex Gangitano, Unions Wade Into Debate Over Requiring COVID-19 Vaccine, The Hill (Jan. 21, 2021), https://thehill.com/business-a-lobbying/business-a-lobbying/535143-unions-wade-into-debate-over-requiring-covid-19.
20
Id.
21
Can Employers Make Covid-19 Vaccination Mandatory?, Associated Press (Dec. 22, 2020), https://apnews.com/article/can-employers-covid-19-vaccine-mandatory-ba22c99f01f24ea3be7631ff751f0d82.
22
Fact Check: Scientists Do Not Yet Know Whether the COVID-19 Vaccine Reduces Transmission of the Virus, Reuters (Jan. 18, 2021), https://www.reuters.com/article/uk-factcheck-transmission/fact-check-scientists-do-not-yet-know-whether-the-covid-19-vaccine-reduces-transmission-of-the-virus-idUSKBN29N1UH.
23
Nancy Incesta & Amy Traub, Employers Need a Clear Plan if Employees Refuse a Mandatory Vaccine, Bloomberg Law (Jan. 20, 2021), https://news.bloomberglaw.com/class-action/employers-need-a-clear-plan-if-employees-refuse-a-mandatory-vaccine.
24
Id.