As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that employers comply with their obligations to accommodate employees with religious objections (under Title VII of the Civil Rights Act (Title VII)), a disability (under the Americans with Disabilities Act (ADA)), or other protected statuses under applicable federal or state law.   Notably, even when accommodations are not warranted, employees must be free to refuse to be vaccinated, even if that means the employee will be subject to workplace consequences based on the refusal (e.g., not being allowed on Company property without vaccination, or even being terminated in certain circumstances).

From a federal perspective, the EEOC recently issued guidance addressing the COVID vaccine in the workplace.  This guidance implies that mandatory vaccinations are permissible, subject to the accommodation considerations mentioned above and discussed in detail below. In part, this appears to be based on the conclusion that the vaccine itself is not a medical exam governed by the ADA.  In contrast, the EEOC has taken the position that the questions typically asked prior to administering the COVID vaccine—namely, “Is there any medical reason you cannot have this vaccine?”— would elicit information regarding a disability and thus constitutes a disability-related screening governed by the ADA. Therefore, if an employer requires employees to get the vaccine, and administers the vaccination itself, the employer must be able to demonstrate that the pre-vaccination questions are “job-related and consistent with business necessity” in order to comply with the ADA.  Given the nature of the COVID pandemic, an unvaccinated employee would likely pose a “direct threat” to others in the workplace (a position the EEOC has previously recognized), such that any screening involved in requiring and administering a vaccination would be “job-related and consistent with business necessity” and therefore permissible under existing ADA requirements.  Were the EEOC to change its position on the COVID pandemic presenting a direct threat, this analysis may change.

(2) May an employer require employees to provide objective evidence (like a vaccination card) to confirm they have been vaccinated?

Yes. The EEOC’s recent guidance states that asking an employee to show proof of vaccination is not a disability-related inquiry. However, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”

Therefore, an employer may:

  • Require employees returning to work to provide Human Resources with documentation (a doctor’s note, or documentation from a healthcare clinic or pharmacy, depending on where they receive the vaccine) verifying the date(s) on which they received the vaccine, but the employer should instruct employees not to provide any other medical information as part of that documentation, in order to avoid implicating the ADA.
  • Provide vaccinations at employer locations, similar to wellness checks or flu vaccinations. The provider the employer works with would have a roster for those who sign up, when they are scheduled to receive vaccination, etc. Notably, if an employer plans to cover the cost of these on-site vaccinations – including for employees not covered by their group health plan – there are additional benefits considerations that should be discussed with counsel in advance.
  • If the employer will pay the cost of vaccinations obtained elsewhere, the employer may work with a preferred occupational health provider (e.g., the same medical provider used for pre-employment drug screenings or fitness for duty examinations prior to a return to work from an injury) to administer the vaccine and send confirmation to the employer (with the employee’s consent).

(3) If an employer confirms that an employee submitted fraudulent evidence of vaccination, can the employee be disciplined?

Yes. This would be dishonesty, similar to an employee submitting false documentation/certification with respect to a request for FMLA leave, or a phony doctor’s note for an accommodation of a disability. The infraction leading to termination would be dishonesty.  For the avoidance of doubt, to the extent an employer’s existing policies do not prohibit dishonesty, communications to employees concerning the mandatory vaccination program should inform employees of the consequences of submitting fraudulent information/documentation.

(4) If an employer requires employees to get vaccinated / show proof of vaccination and does not offer the vaccine on site during work hours, is the time spent by hourly, non-exempt employees getting vaccinated compensable time that should be paid?

Possibly.   The Department of Labor (DOL) would likely take the position that time spent by a non-exempt employee obtaining a vaccine that is mandated by the employer is compensable.  Accordingly, the more risk-averse approach is to pay such employees for the time.  Even with long lines at some vaccination locations, most individuals can get through the process in under an hour, particularly as most sites are currently requiring registration and an appointment.  If an employer is going to require the vaccine, the time spent getting the vaccine should be paid.  Obviously, in the case of the two-dose vaccine, the time will be double, but still not a significant expense.  Hourly employees should be advised to track time spent obtaining the vaccine and report that time to management, Human Resources, or Payroll.

(5) In what circumstances do employers have accommodation obligations with respect to an employee who objects to, or is unable to receive, the vaccine?

Disability

The ADA and similar state fair employment practices laws require employers to provide “reasonable accommodations” to employees with medical conditions that would make them unable to be vaccinated. For example, the Food and Drug Administration (FDA) has recommended that people with certain allergies not get the COVID vaccine. There may be other medical reasons as well, such as having a compromised immune system, that prevent an employee from being able to be vaccinated.

Notably, a general fear of the vaccine is unlikely to qualify as a protected status.  Especially under federal law, the guidance from the EEOC thus far has been that a fear of contracting COVID does not require accommodation, so a good argument could be made that other generalized fears (such as fear of vaccination), unless tied to a mental or emotional disability, similarly do not require accommodation.

Religion

Title VII and similar state fair employment practices laws protect employees who refuse to take a mandatory vaccine because of sincerely held religious beliefs. Membership in a church or even a belief in God is not necessary to substantiate a religious objection. A strongly or sincerely held moral or ethical belief would also likely be covered by the law, but political or general philosophical objections likely would not be covered by Title VII.

Pregnancy

Some states (Colorado, for example) have statutes requiring accommodation of pregnancy or pregnancy-related medical conditions in a manner similar to that required for disabilities or religious objections.  Therefore, employers should review applicable state law before responding to objections to vaccination based on pregnancy or a pregnancy-related medical condition – or take the risk-averse approach and simply treat pregnancy-based objections the same as objections based on religion or disability.

Other Protected Statuses

There are a number of state laws that, depending on the circumstances, could protect an employee who opposes vaccination.  For example, if the employee’s opposition is tied to (or arguably could be tied to) a political belief/party affiliation, the employee could have protection in those states that prohibit discrimination on the basis of political belief (such as New York and the District of Columbia). Similarly, if an employee engaged in legal off-duty conduct (such as participating in a rally against vaccination), and the employer knew about this participation and the employee was later terminated or otherwise suffered some adverse employment action, the employee could have protection in those states that prohibit discrimination on the basis of legal, off-duty conduct (such as Colorado).  A number of other states have also proposed legislation prohibiting discrimination on the basis of vaccination (such as Rhode Island), so further state law restrictions may be forthcoming.

Depending on the employer’s location and the location of the employee (particularly as many employees are currently working remotely), state laws should be carefully reviewed, and we recommend an employer seek advice of counsel if an employee raises a basis for accommodation the employer has not contemplated.

(6) If an employee asserts a reason for refusing the vaccination that triggers a duty of accommodation, what supporting evidence may the employer request?

It depends on the reason asserted for refusing vaccination.  As noted above, federal law recognizes two reasons for refusal that would require an employer to engage in the reasonable accommodation process, and the supporting evidence that may be requested is different for each.

  • Disability: An employer may require the employee to provide documentation from a medical provider stating the employee’s impairment, how it affects major life activities, how it specifically prevents this employee from being vaccinated against COVID, and how long the impairment will last (i.e., can the employee never get a vaccine, or is there some reason he/she cannot get it right now).
  • Religion: An employer’s ability to require documentation in support of a religious objection to vaccination is more limited. In some cases, an employer may seek confirmation that the belief requiring accommodation is: (a) sincerely held by the employee, and (b) actually religious in nature, rather than moral or philosophical.   The following are some practical tips when dealing with religious objections:
    • Ordinarily, Assume Sincere Belief: The definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, so the EEOC advises that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.
    • If There Is A Basis For Questioning, Then Request Additional Information: If, however, an employee requests religious accommodation, and the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer may seek additional supporting information. For example, if an employee claims a religious objection to allowing man-made objects (such as a needle) to pierce his skin, but the employer knows that the employee received a vaccination against yellow fever for a trip to Africa, then the employer has an objective basis to question the sincerity of the professed belief.
    • Do Not Demand Letter from Clergy: Employers may require third party verification, but should not insist specifically on a “note from a priest or clergy,” as one would request a note specifically from a medical provider with respect to a disability. The EEOC has found that  “idiosyncratic beliefs” can be sincerely held and religious, and employees need not provide third-party verification from a church official or member. Instead, verification may come from another third party who is aware of the employee’s religious belief or practice.
    • Lower Bar for Undue Burden: The standard for demonstrating that a requested accommodation would pose an undue burden is much lower under Title VII than under the ADA. An accommodation causes an undue hardship under Title VII if it would impose anything more than a de minimus cost upon the employer’s operations, including effects on efficiency, staffing levels, safety, and other employees. Therefore, when and if you receive a religious accommodation request, keep in mind that it will be easier to reject based on it creating an undue hardship and employers should be sure to document any evidence of such hardship.
    • Political/Philosophical Beliefs Not Protected: Some employees may refuse vaccination based on political or philosophical viewpoints. Those are not protected under Title VII. However, the line between religion and philosophy may be fact-specific: would a very serious vegan be entitled to protection because the vaccine requires the use/destruction of chicken eggs? Probably not, but some recent case law suggests that the answer is not cut-and-dry. As with an ADA request, employers should take each request individually and as a fact-specific request before demanding documentation or making a decision on a requested accommodation.
  • Other Protected Statuses: As there may be different protected statuses and permissible documentation requirements in certain states, employers should consult with counsel when presented with a request for accommodation from mandatory vaccination.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html