Perspectives from the Key Regulatory Bodies
As we head into the Second Quarter of 2021, the US is beginning to glimpse long-awaited signs of a brighter summer ahead. While the COVID-19 pandemic is far from over, hope for a return to normal living seems to be as tantalizingly close as one vaccine appointment away.
To help ensure the health and safety of its employees, can an employer require his or her employees to receive the COVID-19 vaccine? What are the legal implications for an employer who mandates COVID-19 vaccines, and is it preferable to encourage vaccines instead of requiring them?
We will explore, below, key guidance for employers from the EEOC, OSHA, and the CDC, including potential issues of concern for employers who desire to incentivize their employees to voluntarily receive the COVID-19 vaccine.
The EEOC: “Yes, but Make Reasonable Accommodations.”
On March 21, 2020, the US Equal Employment Opportunity Commission (EEOC) updated a work entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which was originally published in 2009 in response to the H1N1 pandemic. In this guide, the EEOC raises two key legal issues for employers: If employees choose to mandate or strongly encourage COVID-19 vaccines, they will need to understand and be cautious to adhere to the Americans Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, which permit employees with medical exceptions or religious beliefs to receive reasonable accommodations from the employer.
In a more recent publication from December 2020, What You Should Know About COVID-19, the ADA, The Rehabilitation Act, and Other EEO Laws, the EEOC delves deeper into considerations for employers eager to vaccinate the workforce. The EEOC reiterates that employers must attempt to provide reasonable accommodations for individuals who decline the vaccine due to medical or religious exemptions. The EEOC explains how measures such as ensuring safe distances between employees, plexiglass barriers, and telework should be considered for an employee who is unable to receive a mandated vaccination (What You Should Know, D.1). Employers should carefully tailor accommodations to the employee’s needs.
The EEOC also acknowledges that, in compliance with the ADA, an employer may determine what qualification standard is necessary to hold a given position in the workplace. A qualification standard, including a mandatory vaccination program, could include under what circumstance an employee might pose a direct threat. The EEOC explains that an individual who is unable to be vaccinated may be identified as a direct threat in the workplace.
However, the EEOC emphasizes that employers must carefully consider what reasonable accommodations can be made for an employee who is unable to receive a mandated vaccine. If reasonable accommodations cannot be made without undue hardship to the employer (per the ADA), an employer may “exclude the employee from physically entering the workplace” but “may not automatically terminate” and must consider other legislation (EEO, federal, state, or local) that may come into play (What You Should Know, K.5-K.7).
OSHA: “Yes, but We Offer Guidance, Not Law.”
The Occupational Safety and Health Administration (OSHA) explained in a 2009 letter addressing mandatory flu vaccinations that while “OSHA does not specifically require employees to (be vaccinated), employers may do so.” Additionally, an employee may be protected by whistleblower rights if a medical condition gives him “reasonable belief” that receiving the vaccine would result in seriously adverse outcomes (and OSHA includes allergic reactions as an example of such an outcome). In its January 2021 publication Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, OSHA suggests that employers make the vaccine available to their employees at no cost, while emphasizing that employees, vaccinated or not, must continue to follow safety protocols including wearing a mask and practicing social distancing. OSHA emphasizes that its role is one of advice on best practices for employers and employees alike, and “creates no new legal obligations” within the context of this guidance.
The CDC: “Refer to State Law and Consider Your Options.”
Mandatory vaccinations against COVID-19, the CDC avers, will ultimately be a matter of state and other legislation. In the absence of much-needed clarity for employers considering whether or not to mandate vaccinations in the workplace, the CDC has provided a resource for employers who wish to encourage their workforce to voluntarily seek vaccinations in its FAQs about COVID-19 Vaccinations in the Workplace: For Employers. Among the CDC’s recommendations are incorporating COVID-19 vaccinations into existing workplace wellness programs and hosting cost-free vaccination clinics. The CDC urges employers to collect input from various departments, including management, HR, and employees themselves to orchestrate a successful immunization process.
NC Employers: Tread Cautiously
For North Carolina business owners, it seems that yes, employers may require their employees to receive the COVID-19 vaccines under certain restrictions. Employers must recognize certain medical and religious exceptions, and they must seek to provide reasonable accommodations in these circumstances. In FAQs Regarding COVID-19, the NC Department of Labor (NCDOL) clarifies that North Carolina’s status as an at-will state allows employers to mandate vaccinations for employees who do not fall under medical or religious exceptions. If reasonable accommodations cannot be implemented for these individuals who are unable to receive a mandatory vaccine, the employee may be terminated. The NCDOL also affirms that employers may incentivize employee vaccinations provided employers comply with the ADA and GINA (the Genetic Information Nondiscrimination Act).
In hopes to encourage voluntary employee vaccinations, some employers have considered providing incentives to employees who opt for immunizations. The EEOC provides guidance to help ensure that such programs are compliant with the ADA and GINA. As of January 20, 2021, proposed regulations from the EEOC are unavailable for review while they are under a regulatory freeze pending review by the Biden Administration.
Concerns about the implications of mandating vaccines and misgivings about the safety of the COVID-19 vaccines are unlikely to dissipate soon. For business owners and employees alike, it will be critical to be cognizant of and compliant with swiftly changing regulations and suggestions from OSHA, the CDC, the EEOC, and state and local laws. Hammer Law is ready to address your specific concerns about mandatory and voluntary employer immunization requirements.
Hammer Law PLLC is not a litigation firm. We do not handle lawsuits, cases, or claims against employers. If you are seeking legal assistance in this area, we will be unable to assist you.