Frankfurt Kurnit Klein & Selz

December 16th, 2020

Can Employers Require Employees to Receive a COVID-19 Vaccination?

On December 11, 2020, the U.S. Food and Drug Administration granted Pfizer an Emergency Use Authorization for its COVID-19 vaccination. While this and other vaccine news is encouraging, it raises a difficult question: Can employers require employees to get the vaccine before returning to the workplace?

Past experience: flu vaccines. In 2009, both OSHA and the EEOC concluded that employers may require their employees to be vaccinated as a condition of employment. In a Technical Assistance Q&A published on December 16, 2020, the EEOC seemed to confirm that employers can require COVID vaccines by reiterating that employers may 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.” But this does not necessarily mean that employers can automatically declare that vaccination requirements are a “safety based qualification standard” that must be adhered to or employees will not be permitted in the workplace. As with anything else in employment law there, are potential exceptions to a mandatory vaccine rule that will apply.

Exceptions for employees with disabilities. The first exception would be for employees who have disabilities under the Americans with Disability Act (the “ADA”) that would prevent them from getting the COVID vaccine. Specifically, if an employer’s vaccination requirement would eliminate (or would tend to eliminate) persons with disabilities, the employer must show that an unvaccinated person would pose a direct threat meaning “a significant risk of substantial harm to the health or safety” of individuals. This is a fact-driven analysis that must take into account the following four factors: (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. If after going through this four-step assessment an employer concludes that an individual with a disability who cannot be vaccinated poses a “direct threat” to others at the workplace, the employer may exclude this unvaccinated employee from the worksite but only if there is no way to provide this employee a reasonable accommodation (absent an undue hardship to the employer) that would eliminate or reduce this risk. In order to achieve a balance between the ADA and the employer’s duty to provide a safe workplace, the EEOC advises that managers responsible for communicating an employer’s mandatory vaccination requirement should know how to recognize an accommodation request from an employee with an ADA covered disability and know the next steps that must be taken to engage in the interactive process.  

Exceptions for employees’ religious beliefs. Title VII of the Civil Rights Act of 1964 provides another exception. This exception requires employers to provide reasonable accommodations to employees with “sincerely held religious beliefs, practice, or observance” that would prohibit them from taking the vaccine. Employers, who have an objective basis to do so, may request an employee seeking a Title VII accommodation to supply information verifying that the religious belief is, in fact, one the employee “holds sincerely”. We note that employers choosing to require COVID vaccination as a condition of employment do not have to accommodate refusals to take it based on political or scientific beliefs regarding the vaccine.

Other limitations. Employers who are subject to a collective bargaining agreement should consider any additional limitations therein before deciding on a vaccine policy.

Key questions. Given government reports indicating that wide-spread vaccine availability for the general public is months away, employers can (and should) use this time to decide a number of key issues: First, is their organization going to mandate employees get the vaccine or “strongly encourage” them to do so? Second, how should employers respond to requests for reasonable accommodations? Finally, are there workers’ compensation concerns or is there coverage pursuant to the Public Readiness and Emergency Preparedness Act (the “PREP Act”) that may provide employers immunity against claims of loss “caused by, arising out of, relating to, or resulting from” taking employer-mandated vaccines? 

Complimentary webinar. The Frankfurt Kurnit Employment Compliance, Training & Litigation Group will address these and other new employment laws on January 12, 2021 during Part 4 of our Return to Work Series: A New Hope…COVID 19 Vaccines and Other Employment Laws for Employers in 2021. (Watch for our invitation.) In the meantime, if you have questions about mandating vaccines, or about other employment law issues, please contact Tricia Legittino at (310) 579 9632 or tlegittino@fkks.com, Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, or any other member of our Employment Compliance, Training & Litigation Group.