By Renee E. Coover, JD, ByrdAdatto

Experts generally agree that the United States will not reach "herd immunity"—when the population is protected from the COVID-19 virus through vaccination—until a significant percentage of Americans receive the COVID-19 vaccine. Now that the COVID-19 vaccine is being distributed throughout the United States and is becoming more widely available, employers are faced with deciding whether to mandate the vaccine for their employees.

According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC) released on December 16, 2020, it is entirely possible for an employer to mandate the vaccine. Even so, there are overlapping federal laws that employers need to consider if they choose to do so. Title VII affords protection based on race, color, sex, religion or national origin; the Americans with Disabilities Act (ADA) prohibits discrimination based on disability; and the EEOC also regulates violations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). These federal regulations afford employees protections against discrimination in the workplace and may easily be implicated when an employer requires employees to get vaccinated.

Before mandating vaccination, employers should pay particular attention to pre-vaccination screening, proof of vaccination and refusals to receive the vaccine when it involves employees with ADA-protected disabilities, Title VII-protected religious observances and GINA-protected genetic information.

Pre-vaccination Screening

If an employer chooses to administer the vaccine to employees or through a contractor on their behalf, pre-vaccination medical screening questions are likely to reveal information concerning an employee's disability, if they have one. When asked by an employer, these questions can be considered "disability-related" in violation of the ADA. To stay in line with federal regulations, an employer must show that pre-vaccination screening inquiries are "job-related and consistent with business necessity." In order to meet this standard, an employer needs to show a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a threat to the health or safety of themselves or others.

Alternatively, there are two circumstances in which the employer is not required to make this showing. First, if an employer offers a COVID-19 vaccination to employees on a voluntary basis, the employee's decision to answer pre-screening, disability-related questions also must be voluntary and, thus, the employee's voluntary answers to pre-screening questions does not invoke the ADA. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but may not retaliate against, intimidate or threaten the employee for refusing to answer any questions. Second, if an employer requires its employees to get vaccinated by an independent third party, such as a pharmacy or other health care provider, the ADA's restrictions on disability-related inquiries would not apply to the pre-vaccination screening questions.

In addition to ADA implications, pre-vaccination inquiries may also trigger GINA, which prohibits an employer, or health care provider working for the employer, from asking questions about an employee's genetic information. To guarantee compliance, during pre-vaccination screening inquiries, an employer should ensure that the questions will not reveal genetic information about the employee.

Requesting Proof of Vaccination

GINA may also be implicated if an employer chooses to require its employees to get vaccinated through a health care provider. In this case, the employer should warn its employees not to provide any genetic information as part of their proof of vaccination when provided to the employer. If the employer provides this warning and genetic information is inadvertently disclosed by the employee, it is not considered a violation under the GINA.

To avoid any ADA violations when requesting proof of vaccination from employees, an employer can simply request proof of receipt of a COVID-19 vaccination. This is not likely to elicit information about a disability and, thus, would not constitute as a disability-related inquiry.

Refusal to Vaccinate

Businesses face a difficult balancing act when deciding whether to mandate employee vaccination. On one hand, companies bear responsibility for safeguarding their employees and the clients and patients they serve. But companies also must respect the rights of their employees. It is inevitable that some employees will be reticent to get the vaccine when it is made available, and others will flat out refuse.

While directing employees to obtain the COVID-19 vaccine is ultimately to protect others in the workplace, such a requirement could have the effect of screening out an employee with a disability who cannot receive the vaccine. Nevertheless, the ADA gives an employer the ability to set standards to prevent a "direct threat" to the health or safety of other individuals in the workplace. If a workplace COVID-19 vaccination standard screens out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat due to a "significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." An employer must then conduct an intensive "individualized assessment" to ascertain the risk posed by the individual. The assessment will include factors such as the duration, nature and severity, likelihood, and imminence of the risk. If the results of the assessment show that the unvaccinated individual poses a direct threat to others, the employer may exclude the employee from the workplace. That being said, the employer still must try and accommodate the employee—for example, via telework, job reassignment, or leave of absence—before terminating their employment.

Title VII also provides protection for religious beliefs, practice or observance, which safeguards employees refusing to vaccinate for religious reasons. In the event an employee refuses to vaccinate due to religious beliefs, the employer must provide reasonable accommodations for that religious belief, practice or observance unless it would pose more than a minor cost or burden on the employer. Unlike disability-related inquires, if an employer has an objective belief for questioning either the religious nature or the sincerity of the belief, practice or observance, the employer may request additional information from the employee.

Ultimately, an employee's refusal to vaccinate does not permit an employer to automatically terminate employment. If the employee's refusal is related to an ADA-covered disability or a religious practice protected by Title VII, the employee is entitled to accommodations in the workplace. If such accommodations are not available, the employee may be entitled to take leave under local, state or federal law, or the employer's leave policies.

Potential Drawbacks to Mandating Vaccination

The obvious benefits to mandating the COVID-19 vaccine include further protection for the health and safety of other employees, as well as a potentially vital tool in stopping the pandemic. Even so, there are also some potential drawbacks to requiring the vaccine. The most obvious are employee objections. Whether these objections are based on political beliefs, a disability, religious beliefs or pregnancy, an employer should do their best to accommodate them. As mentioned previously, there are several federal protections to consider, including the National Labor Relations Act (NLRA). Employers need to be conscious not to violate the NLRA by prohibiting employees or retaliating against employees for participating in controversial and protected discussions with other employees regarding their position on requiring the vaccine.

There also are additional concerns for multistate employers. Expanding business across state lines can open an employer to various differing legalities and requirements in each state. Differences in the law do not stop at the state level. Employers also will need to consider conflicts between their state and local laws, because although at the state level an employer may mandate vaccination, there could be local laws that prohibit such a policy.

Another drawback—one of the most important to employers—is the cost of mandating the vaccine. If an employer requires employees to get vaccinated, the employer must be prepared to pay for the costs of vaccination, including time off work to get vaccinated. This includes the additional cost of consistently enforcing the employer's vaccination policy. Supervision will not only be time consuming, but also can bring consequential costs of monitoring, verifying and enforcing the policy equitably.

Employers should proceed with caution, because not only may employees have adverse reactions to an employer mandating the vaccine, but, according to recent news, there are potential adverse reactions to the vaccine itself. Rare reactions to the Moderna vaccine—only three cases out of 30,000 in a clinical trial—have affected some individuals with dermal fillers. (No such reactions to the Pfizer vaccine have been reported.) Because the reactions to the Moderna vaccine are so rare, minor and easily treatable, there has been little controversy, but if future reactions are detected, they could be potential concerns for employers.

Employer Solutions

If employers feel strongly about introducing the COVID-19 vaccine in the workplace, anticipated pushback from employees can be fixed with simple solutions. For example, an employer can make the vaccine policy voluntary. This will help keep the employees' personal autonomy intact, and employers can still strongly encourage vaccination. To encourage resistant employees, an employer can hold an informative session to educate employees on the safety and efficiency of the vaccine. This will provide employees with a higher comfort level and allow employees an opportunity to ask questions and obtain more information regarding the employer's policy.

This new era of health and safety in the workplace can be tricky, and it is important to consult with experienced employment counsel before making any major decisions.

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Renee E. Coover, JD, is an associate with ByrdAdatto, a law firm focusing on business, healthcare, and aesthetics. She has a unique background, blending litigation with healthcare law. A former litigator in high-stakes employment cases, Renee has extensive experience with counseling and representing businesses in employment matters, policies, and contract disputes, and defending business owners in state and federal trials. She has also served as General Counsel for the American Med Spa Association, advising health care professionals on regulatory and legal issues governing the medical spa industry.

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