Can Employers Require Employees to Take COVID-19 Vaccines?
Our country has been in the grips of COVID-19 for almost one year. One of the most effective tools utilized to combat the virus is vaccination. In December 2020, the United States Food and Drug Administration (FDA) granted emergency use authorization (EUA) for both the Pfizer and Moderna vaccines. Approvals for additional vaccines are anticipated in the next few months.
No doubt employers, including public employers, have an interest in keeping their employees safe from this virus. To keep employees safe, can employers require their employees to be vaccinated? The answer is that employers can require employee vaccination within certain parameters.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance on this subject. The guidance provides that vaccines are not considered medical examinations, and therefore, an employer can mandate employee vaccination without violating the Americans with Disabilities Act (ADA).
Nevertheless, should an employer or employer contractor directly administer vaccines to employees, employers can violate the ADA. All prospective COVID vaccine recipients are required to answer pre-screening questions to help ensure vaccine safety for each recipient. The responses to these questions could reveal employee disabilities and medical conditions. The EEOC guidance suggests that an employer can avoid ADA violations while still mandating vaccination, if they permit employees to choose where to obtain the vaccine.
The EEOC guidelines also explain, if an employer offers employees vaccinations on a voluntary basis, to comply with the ADA, the employer cannot require employees to answer pre-screening, disability-related questions. Thus, if an employee refuses to answer pre-screening questions, an employer may not retaliate.
The current EEOC guidance permits employers to require an employee to provide proof of vaccination. If, however, an employee cannot present such proof, employers must proceed cautiously, because employer follow-up questions as to the reasons an employee has not been vaccinated can also result in ADA violations. The ADA also requires employers to keep any employee medical information obtained during its vaccination program confidential.
If an employer requires employee vaccination, and an employee cannot be vaccinated, the employer may still have a duty to accommodate the employee. The ADA permits employers to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” A safety-based qualification standard, such as a vaccination requirement, can result in excluding disabled employees from the workplace. To exclude an employee on this basis, the employer must demonstrate that an unvaccinated employee poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Accordingly, employers must evaluate the following four factors to determine if a direct health threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Once an employer concludes that an unvaccinated employee poses a direct threat at the worksite, even in that instance, the employer cannot automatically exclude the employee from the workplace without first concluding there is no reasonable accommodation that would eliminate or reduce this risk of having the unvaccinated employee in the workplace.
Furthermore, if an employer excludes the unvaccinated employee from the workplace, before an employer terminates an employee, the employer must determine that there are no reasonable accommodations. For example, like an employee who tests positive for COVID, the employee may be entitled to work remotely. In addition, employees may be eligible for leave under the Families First Coronavirus Response Act, the Family Medical Leave Act (FMLA), the New Jersey Family Medical Leave Act (NJFMLA) or relevant employer policies.
Employees can also refuse to be vaccinated if vaccination conflicts with their sincerely held religious beliefs. If an employee asserts a religious objection, an employer must provide a reasonable accommodation, unless the accommodation would pose an undue hardship on the employer under Title VII of the Civil Rights Act. Undue hardship, in this regard, is one which imposes more than a de minimis cost or burden on the employer. The EEOC guidance further cautions that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.
In New Jersey, public school students are required to have certain vaccinations, however, a New Jersey statute that did require some teacher vaccines was repealed in 1974. In addition, prior to requiring public school employees to be vaccinated, it is best to consult relevant collective bargaining agreements, past practice, and any other anticipated impacts on terms and conditions of employment.
An employee vaccination requirement could also result in employer liability. Although severe vaccination reactions seem to be rare, severe reactions remain possible. Employers may be covered by workers compensation.
Prior to imposing a mandatory employee vaccination policy, school boards and administrators should consult their board attorney. It is also important to note that the EEOC guidance discussed herein, released by the Trump administration, on employer-required COVID vaccines, may be updated by the new Biden administration.