Mandating Employee Vaccinations & More: Key Takeaways from Recent Guidance

On May 28, 2021, the EEOC issued new guidance regarding employer vaccination policies.  Updating the previously issued Q&A, the new guidance addresses mandatory vaccinations, vaccine incentives and disability accommodation concerns.  Working in tandem with the new EEOC guidance, OSHA has suspended the posting requirements for COVID-19 vaccination side effects experienced by vaccinated employees as a result of employer-administered vaccinations in order to encourage employer vaccination efforts.

Employers should note, however, that the EEOC formulated this guidance prior to CDC’s updated guidance for fully vaccinated individuals.  It remains uncertain how and whether the EEOC plans to incorporate the CDC’s new approach to vaccinated individuals into further guidance  Here are several key takeaways for employers.

1. Under federal law, an employer may mandate COVID-19 vaccinations for employees physically present at the workplace, subject to reasonable accommodations under Title VII, the ADA and other EEO considerations.  Under EEOC guidance, reasonable accommodations to any vaccine mandate must be offered to any employees with disabilities, sincerely held religious beliefs, and related reasons.

2. Under the ADA, an employer may not require compliance with a vaccine mandate for an employee with a recognized disability unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is defined as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  

• A direct threat assessment is an individualized assessment of the employee’s present ability to safely perform the essential functions of the job based on a number of referenced factors including duration of risk, nature and severity of potential harm, likelihood and imminence of such harm.

• These factors depend on “reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including for example the level of community spread at the time of the assessment.

• Even if a “direct threat” assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.

3. If an employee expresses a religious objection to a COVID-19 vaccination, employers should engage in an interactive process to assess the possibility for a reasonable accommodation.  Absent undue hardship (defined more narrowly than under the ADA), reasonable accommodations can include masking, social distancing, and telecommuting, and other alternatives.

4. Both under the ADA and the Genetic Information and Non-Discrimination Act (GINA), an employer may offer employees certain incentives for obtaining a COVID-19 vaccine whether through an employer-run program or an external healthcare provider.  But, for vaccination programs administered by employers or their agents, any incentive (which includes both rewards and penalties) can not be so substantial as to be “coercive”.  This incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation for externally administered vaccination programs.

• However, GINA’s Title II prohibits employers from offering any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. GINA does not prohibit employers from offering employees’ family members an opportunity to get vaccinated without incentives.

5. Under Title VII, employees who are seeking an exemption from an employer’s vaccination requirement for pregnancy-related reasons may be entitled to job modifications, including telecommuting, changes to work schedules, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.

6. Even fully vaccinated employees may request accommodations due to COVID-19 concerns.  When that occurs, an employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation, e.g., in cases of immunocompromised employees.

What to Expect Next and Outstanding Issues

Both Pfizer and Modern recently applied for full approval of their vaccines by the FDA.  The EEOC specifically disclaims any jurisdiction to discuss the legal implications of the vaccines being under the Emergency Use Authorizations (EUA) by the Food and Drug Administration (FDA).  As the EUA status changes to full FDA approval or current medical knowledge develops, the EEOC may choose to issue subsequent guidance.  

As things stand now with the vaccines still being administered under the EUA, we have already seen lawsuits challenging the employers’ ability to mandate vaccines in the workplace, though so far unsuccessfully.  For example, a lawsuit filed by employees of Houston Methodist Hospital, Jennifer Bridges et al. v The Methodist Hospital, was summarily dismissed by a federal judge in the Southern District of Texas, in a decision that relied in part on the EEOC guidance concerning vaccinations.  That challenge, however, is not likely to be the last.

Employers should expect growing pains with any policies going forward under the current back-to-work environment.  As worksites are opening up to more and more employees, employers should expect more interpersonal conflicts between employees and more resistance to any policy, however reasonable, as employees adjust to business as usual.  As we go into fall when many offices and worksites are expected to be fully operational and schools are hopefully fully open to in-person instruction, employees and employers are indisputably going to be seeing additional (or different) stresses of navigating office dynamics that were not present over the past year and a half.  If COVID-19 cases start popping up in the classrooms again in the new academic year, we may see additional or extended regulations and guidance at the state, federal and local levels relating to leave policies.