As COVID-19 vaccines become more widely available, employers wishing to implement a COVID-19 vaccination policy must consider, among other things, two important questions.  This alert addresses these two fundamental questions.

Can employers implement a mandatory COVID-19 vaccination policy?

The EEOC recently released COVID-19 vaccination-related guidance for workplace vaccination policies and implied that employers can implement a mandatory vaccine policy, but that they must consider the ADA and Title VII of the Civil Rights Act of 1964 when doing so. For example, pre-screening vaccination questions may implicate the ADA’s general prohibition on disability-related inquiries.  An employer can avoid having to establish that such pre-screening questions are job-related and necessary by:

• Implementing a voluntary policy

• Arranging for employees to receive the vaccine from a third party that is not contracted with the employer

Additionally, both the ADA and Title VII provide grounds for an employee to be exempted from a mandatory vaccination policy. Under the ADA, an employee can seek a medical exemption if the employee has a disability covered by the ADA that prevents the employee from taking the vaccine. Also, under Title VII, an employee can seek a religious exemption if compliance with the mandatory vaccination policy would violate the employee’s sincerely held religious belief. Employees qualifying for a medical or religious exemption are entitled to a reasonable accommodation unless the employer cannot accommodate the employee without undue hardship. Reasonable accommodations under the ADA and Title VII may include:

• Personal protective equipment

• Temporary reassignment

• Telework

Discussion of medical and religious exemptions, however, risks getting the proverbial cart before the horse.  The way in which the vaccines are now coming “onto the market” introduces considerable doubt as to whether an employer can currently mandate vaccination of its employees.  We now turn to that question.

How does the FDA’s emergency use authorization (EUA) affect the ability of employers to mandate vaccinations?

Given the unprecedented scope of this world-wide pandemic, the FDA, as it has authority to do in times of national emergency, used an expedited process to authorize the two available COVID-19 vaccines for “emergency use.” It is not entirely clear at this time what ramifications the emergency use authorization (EUA) will have for employers who want to mandate the vaccines for their employees.

Under FDA rules, any drug (or vaccine) approved for emergency use must be accompanied by a patient “fact sheet.”  As stated on the FDA website, the “FDA must ensure that recipients of the vaccine under an EUA are informed, to the extent practicable given the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.”

What can employers make of this language on opting to refuse or accept?  Generally speaking, the FDA does not have jurisdiction over employer-employee relations. Other agencies, such as the EEOC and the Department of Labor, have primacy in that sphere.

The EEOC took note of the EUA status of the vaccines in its recent guidance, but did not ban mandatory vaccination policies.  It is not the place, however, of the EEOC to enforce FDA statutes or policy.  Instead, the EEOC seemed to proceed with an acknowledgment that some employers might mandate vaccinations. It is as if the EEOC is unwilling to either sanction or disavow the FDA’s position on EUA rights of refusal.  Rather, the EEOC was addressing employment issues within its purview should an employer mandate vaccination.

Where does this leave the employer? 

Employers choosing to implement a mandatory vaccination policy ought not ignore the FDA’s edict that a candidate for a vaccine shot must be told that they have the option to refuse the vaccine authorized under an EUA.  That right has its source in federal law and reflects the balancing act that the FDA undertakes when it shortcuts its process to get a vaccine or drug out to the people in times of emergency.  If an employer terminates the employment of an employee who has asserted their right to refuse the vaccine (due to the EUA), the employer may face a wrongful discharge suit in state court alleging a violation of public policy.  These causes of action have, at their core, the principle that an employee should not have to choose between a right conferred by law and keeping their job.

In expressing caution on the implementation of mandatory vaccination policies, we are quite aware of the extraordinary nature of this pandemic.  It may be that a court will limit the reach of the FDA’s requirement of “a right of refusal,” and hold that such does not override an employer’s interest in having a safe workplace.  There just is not much guidance for an employer at this time.  As a practical matter, for most employers there will not be enough vaccines available in the next couple of months to worry over mandation issues.  Also, although there is no timetable for full FDA approval of the vaccines, once that occurs, then the requirement of the vaccine dispenser to affirmatively advise the patient of the option to refuse drops out of the picture.  Thereafter, the employer may mandate vaccination, subject to the medical and religious exemptions discussed above.

The severe and pervasive nature of the COVID-19 pandemic has created unprecedented challenges for employers.  We continue to monitor developments at the national and state level.  We will continue to update our clients on a regular basis.