Yes, an employer can implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions.

A mandatory vaccine policy must be job-related, consistent with business necessity or justified by a direct threat. The Equal Employment Opportunity Commission (EEOC) has already deemed COVID-19 in the workplace to be a “direct threat” with respect to requiring COVID-19 viral testing. And, on December 16, 2020, the EEOC published several FAQs to help guide employers that do elect to implement a mandatory COVID-19 vaccine policy.

Any mandatory COVID-19 vaccination policy must comply with federal and state employment laws, including that employers must consider whether making exceptions to the policy may constitute a reasonable accommodation for employees who cannot receive the vaccine due to legally protected reasons.

WHAT ARE THE EXCEPTIONS THAT EMPLOYERS MAY HAVE TO MAKE TO THEIR MANDATORY VACCINATION POLICY?

There are two federal employment laws that may require employers to make exceptions to a mandatory vaccination policy. Specifically, these are the Americans with Disabilities Act (ADA), which protects employees with disabilities, and Title VII of the Civil Rights Act of 1964 (Title VII), which, in this context, protects employees with sincerely held religious beliefs. (Some states also have similar laws that will govern state to state.)

Both the ADA and Title VII require employers to make reasonable accommodations for employees where doing so will not constitute an undue burden. In practice, typically, this requires a somewhat individualized analysis.

First, employers can generally require employees making exception requests to provide reasonable supporting documentation to verify the basis for the request, and to help in the determination of whether a reasonable accommodation can be made.

From there, the analysis differs between the ADA and Title VII, with the ADA excusing employers from accommodating employees only if any accommodation would pose a significant difficulty or expense, versus Title VII which only requires a showing of more than a de minimis cost or burden to the employer.

In either case, the analysis of whether to provide an accommodation is employer- and employee-specific, requiring the employer to consider factors such as: (1) what is the employee’s underlying limitation (e.g., with ADA, the employer need only provide a reasonable accommodation that permits the employee to do the job, not necessarily the employee’s preferred accommodation); (2) what is the employee’s job, and how might that affect our options on accommodation (e.g., is the job feasible to perform remotely); (3) would the accommodation under consideration pose safety risks for the employee or others.

EVEN THOUGH EMPLOYERS CAN MANDATE THE COVID-19 VACCINE SUBJECT TO EXCEPTIONS, SHOULD THEY IMPLEMENT A MANDATORY POLICY (AS OPPOSED TO A VOLUNTARY POLICY)?

There are a number of factors that employers should consider when determining whether to make the vaccine mandatory or voluntary, including administrative burden, legal exposure and PR issues.

With the flu vaccine, the EEOC has said that while employers can mandate the vaccine, they suggest that employers simply strongly encourage but do not require vaccination. The flu is not COVID-19, and employers will be going through a different calculus in making their choices on COVID-19 vaccination, even if they do not currently mandate flu vaccination; however, the factors that employers must weigh are similar.

A few things that employers should think about—if the vaccine is mandatory:

1. We will see an increased administrative burden on employers mandating the vaccine, because now the employer must deal with requests for exceptions—an individualized analysis that is sure to keep human resources (HR) and legal teams quite busy. There is also an increased administrative burden to ensure the employer is tracking compliance.

2. Denying an accommodation can generate potential exposure to a claim for failure to accommodate under the ADA (disability) and Title VII (religion). Ultimately, the denial may be warranted and legally justified by the employer, but this will not stop the certain wave of litigation on this issue. And because the area is relatively untested, and completely untested with respect to COVID-19, these lawsuits may be more difficult to defeat on summary judgment given open questions of fact as to whether the denied accommodation constituted an “undue burden,” for example. The recently published EEOC guidance ultimately leaves the decision-making burden and legal risk on employers.

3. Because much of the “whether to accommodate” analysis will be employee-specific, this leaves employers open to arguments that they have provided exceptions or accommodations on an unfair basis, giving rise to discrimination claims. Employers mandating the vaccine must work with their HR and legal teams in unison to provide as uniform a response as possible in similar situations.

4. Taking adverse action, like termination, with an employee who refuses the vaccine can likewise generate potential exposure to a wrongful termination claim.

5. There is also some concern, given some of the unknowns as to potential side effects, that an employee who is required to get the vaccine who then becomes ill, injured or dies, may be eligible to bring a claim against the employer. These claims would likely be swept into workers’ compensation. Employers should also consider whether the Public Readiness and Emergency Preparedness (PREP) Act may provide additional immunity, in particular those hospital and health system employers that are administering the vaccine or acting in a “program planner” capacity.

On the other hand, mandating the vaccine may provide some protection for employers, including to the extent that this will increase employee participation and ultimately create a safer, healthier workforce. Moreover, those that mandate the vaccine in their workforce may see PR benefits, providing patients, customers, employees and recruiting candidates with an increased sense of safety and confidence.

That said, given the potential risks and burdens of mandating the vaccine, we are not surprised to see many hospitals—which have first access to the vaccine for their workforce—are making the vaccine voluntary, and opting to “strongly encourage” it, at least in the initial stages.