*UPDATE* On November 4, 2021, OSHA issued a COVID-19 Vaccination and Testing ETS requiring large employers to implement mandatory vaccination policies. Read more here.
Pfizer’s announcement last November that it had developed an effective COVID vaccine received mixed reactions. While some Americans felt relieved, others worried that the vaccine was simply too new and untested to be safe. And just last month, the Pew Research Center found that 39% of Americans “definitely or probably would not get a coronavirus vaccine.”
For companies, this news might be concerning. In April 2020, at the height of the COVID stay-at-home restrictions, an unprecedented 51% of the U.S. workforce was working remotely full-time. That same month, the U.S. also reached an unemployment rate of 14.8%. Although many CEOs plan to continue some sort of remote work after the pandemic, the reality is, not all jobs can be fully remote. So now the question is, can companies really mandate the COVID vaccine?
Federal Anti-Discrimination Law the Covid Vaccine
NOT LEGAL ADVICE: This article provides general information, not legal advice. Any company considering making COVID vaccination mandatory should contact their counsel.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance Q&A, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”1 According to this guidance, a company can implement a safety-based “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.'” So in general, EEOC guidance states that companies can require COVID vaccines if they can show that unvaccinated employees pose a direct threat. However, it’s not that simple.
The COVID Vaccine and the ADA
The Americans with Disabilities Act (ADA), passed in 1990, prohibits discrimination based on disability. It also requires employers to provide employees with reasonable accommodations.
According to the EEOC, under the ADA, if the vaccine requirement precipitates disparate treatment or impact, “the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.'” 29 C.F.R. 1630.2(r).
So, to comply with the ADA, companies looking to mandate the COVID vaccine need to answer at least two (2) preliminary questions:
- Does the unvaccinated employee pose a direct threat? and,
- Even if there is a direct threat, can that threat be reduced with a reasonable accommodation?
Does the unvaccinated employee pose a direct threat?
The EEOC recommends that companies conduct an individualized assessment of whether a direct threat exists by considering the following factors:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
Because this is an individualized assessment, the analysis can be different for every company, and even for individual employees depending on their role and duties.
Can the direct threat be reduced with a reasonable accommodation?
Whether a reasonable accommodation is possible is highly dependent on the circumstances. For example, if the company requires all employees to work in relatively close contact on a line, how that company handles reasonable accommodations will be vastly different from, say, a software company.
To help answer ADA questions related to COVID, the EEOC published technical guidance: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.
WARNING: The EEOC warns that even if the company determines that a reasonable accommodation cannot reduce the risk posed by the unvaccinated employee, that doesn’t mean the company can immediately terminate the employee.
The COVID Vaccine and Title VII
Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Similar to the ADA, Title VII also requires reasonable accommodations. However, this requirement is limited to religious accommodations. For mandatory COVID vaccines, employees may have a religious belief that prevents an employee from receiving the vaccine.
In its guidance, the EEOC states that once a company is on notice of an employee’s “sincerely held religious belief, practice, or observance” that prevents them from receiving the COVID vaccine, it must provide that employee with a reasonable accommodation unless it would pose an undue hardship on the company.
Whether the accommodation imposes an undue hardship depends on the circumstances. Like accommodations under the ADA, it really just depends.
Even if companies who impose mandatory vaccination are not violating federal law, it’s important to remember that state laws are at play here, too. Every state is different.
Even if You Can Require the Vaccine, Does That Mean You Should?
Even though EEOC’s recent guidance seems to show a path to mandatory vaccination, in December 2020 the U.S. Surgeon General, Jerome Adams, told media that he does NOT recommended mandating the vaccine. Why? He said that although the vaccine had been authorized for emergency use, it is not yet fully licensed. This is not to say he does not believe in the vaccine’s efficacy, but it does send the message that companies should consider waiting before making any sweeping decisions.
Along the same lines, companies need to remember that EEOC guidance, although useful, is not law. And depending on what happens in the next six months, this guidance may change.
So, instead of considering whether mandatory vaccination is legal, companies might want to consider whether having employees come back in is really the direction they want to take.
As we have all seen in the media, many companies are embracing remote work like never before. In a recent survey, 78% of CEOs stated that remote collaboration and automation was here to stay beyond the COVID-19 pandemic. REI, the outdoors lifestyle giant, went as far as selling its brand new headquarters, favoring company-wide a remote work model. Experts in the field are realizing that companies can save in areas they hadn’t considered before. Others are simply realizing that it’s possible—so why not do it?
1 It’s important to note that although administrative guidance is a useful resource, it is not law.
