By Katerina Kramarchyk and Meghan DiPasquale
The U.S. Food and Drug Administration advisory committee has recommended that the FDA approve Pfizer’s COVID-19 vaccine for use in the United States under an Emergency Use Authorization.
The question for employers once the vaccine becomes available for distribution is whether they can require employees to take the vaccine as a condition of employment. A mandatory vaccination policy would help employers create a safe and healthy workplace, as required by the Occupational Safety and Health Administration.
Such a policy may also result in fewer employee absences due to COVID infection, and reduced expenses and downtime attributable to office closures for COVID deep cleaning.
Though the EEOC and OSHA have yet to issue guidance specific to the COVID-19 vaccine, given past EEOC guidance, employers can expect that they will be permitted to mandate vaccinations.
In 2009, in response to the Swine Flu (H1N1) pandemic, the EEOC issued guidance giving employers the greenlight to require flu vaccinations, so long as reasonable accommodations are provided for those employees that object to vaccination on the basis of either (1) a disability under the ADA which prohibits that employee from safely receiving the vaccine; or (2) a sincerely held religious belief that prohibits that employee from taking the vaccine.
Due to the significant impact COVID-19 has had on the nation, it is likely that the EEOC will issue similar guidance to employers for the COVID-19 vaccine, despite the public scrutiny surrounding this and other vaccines in recent years.
A factor potentially complicating this advice is the lack of current FDA approval for the Pfizer vaccine (the FDA has a lower efficacy standard for vaccines that have been approved under an EUA, like the Pfizer vaccine, than for those that have full FDA approval—the EUA standard is “may be effective” versus “effective” for approved medications).
Given the current authorization level of the Pfizer vaccine, and without specific guidance, we cannot yet predict when or how mandatory vaccination policies will be authorized. But despite some uncertainty, one thing is clear: Employers should tread carefully when creating workplace policies mandating vaccinations. Here are some tips for creating and implementing your workplace’s mandatory vaccination policy.
Know your workplace. Workplaces that benefit the most from mandatory vaccination policies are those where work cannot be performed remotely, where employees are customer-facing (i.e., retail, restaurants), and where employees interact with vulnerable populations (i.e., hospitals and senior care facilities). If your employees can be spaced apart from one another, perform work in the open air, or can do work remotely, consider whether a more conservative approach is right for your business.
Plan ahead. There is no doubt that requiring vaccinations will be unpopular for some employees. Employers should be prepared for the reality that they may lose workers who are unwilling to take the vaccine. Loss of employees can result in business slowdowns and the risk of bad press or a damaged reputation. Plan ahead for the need to hire, and consult your attorney to help with messaging.
Ensure workplace safety, even if no mandatory vaccination policy is imposed. Employers who choose not to implement a vaccination policy should be mindful of potential tort liability for their failure to provide a safe and healthy work environment, as required by OSHA. Though there is no legal precedent creating employer liability for not requiring vaccinations, even an unsuccessful claim may expose employers to costly litigation. Employers can mitigate some of this risk by ensuring adherence to all proper COVID-19 protocols (including sanitizing communal spaces, spacing employees apart from one another, requiring the use of masks, and supplying hand sanitizer). Consult your attorney for area-specific COVID-19 protocols.
If you can, wait. The EEOC updated its 2009 Pandemic Preparedness in the Workplace Memorandum in March 2020 to address concerns specific to COVID-19. It is expected that the EEOC will again modify this document, or issue separate guidance specific to the COVID-19 vaccine. As vaccines graduate from EUA to full FDA approval status, it is even more likely that the COVID-19 vaccinations will be treated like the Swine Flu vaccines for the purpose of these policies. Moreover, public perception of the vaccine is likely to soften after a period of wide-spread use.
Be mindful of vaccine availability. Employers should be mindful of availability and cost of the vaccine, and ensure that every employee required to get the vaccine has access to it (it is expected that insurance companies will waive costs associated with the COVID-19 vaccine). Employers may consider offering on-site vaccinations to ensure access and availability, and providing a window within which employees are required to get the vaccine (e.g., within 60 days of the policy becoming effective).
Know which employees cannot be mandated to get a vaccine, and how to treat those employees. Employees with disabilities as defined by the Americans with Disabilities Act, or whose sincerely held religious beliefs, practices, or observances as defined by Title VII of the Civil Rights Act of 1964 prevent them from taking the vaccine must be offered “reasonable accommodations” unless such accommodation would pose an undue hardship to the employer.
Importantly, the standard for undue hardship under the ADA is higher than under Title VII. Under the ADA, undue hardship is any significant difficulty or expense, whereas undue hardship under Title VII can be any “de minimis cost.”
Know what you can request to prove exemption from the policy. Employees who specifically ask for an accommodation based on a limitation or disability can be required to provide the nature of that limitation or disability, and the effect that the vaccination would cause. The employee also may be required to provide a doctor’s note to confirm the employee’s disability and need for accommodation.
For those seeking a Title VII religious accommodation, employers should assume, generally, that the religious belief is sincerely held. However, if employers have an “objective basis” to question the sincerity of an employee’s religious belief, supporting information (such as a letter from a religious leader, an employee’s own first-hand explanation, or third-party verification from the employee’s friends or contacts, whether or not they are engaged in the employee’s religion) may be requested.
Be consistent. Employers must be sure not to exempt employees from any mandatory vaccination policy on a case-by-case basis (for instance, supervisors cannot allow employees who are apprehensive about taking the vaccine, without a valid exemption from the requirement, to forego getting vaccinated).
If employers are considering work from home to be a reasonable accommodation for some employees with ADA or Title VII exemptions, but not for others, the employer should establish a set policy by which employees are eligible to work from home (i.e., employees who meet certain clearly enumerated productivity metrics, or employees who hold certain job titles).
As with any other workplace policies, employees who are similarly situated should be treated the same.
Reconsider financial incentives. In lieu of a mandatory vaccination policy, some employers are considering employee bonuses and other incentives for those employees who get the vaccine. These types of incentives cause employers to treat employees differently based on metrics that are not work or productivity related, and may be exclusive of employees who opt out of vaccinations because of an exemption. For these reasons, you should review specific financial incentive plans with your attorney prior to implementation.
Know what employer protections are available. Private employers who implement requirements to use covered countermeasures (such as vaccines) to treat, cure, prevent or mitigate COVID-19 may be considered “program planners”/”covered persons” under the Public Readiness and Emergency Preparedness Act. The PREP act immunizes covered persons against any claim of loss caused by, arising out of, relating to, or resulting from the use of covered countermeasures. This and other available protections may be available to employers, and should be discussed with your attorney.
Whether or not employers decide to implement a mandatory vaccination policy, employers should stay diligent about ensuring a safe workplace. As always, before implementation of any new policy, employers should review proposed policies with their attorneys to avoid potential liability.
Katerina Kramarchyk and Meghan DiPasquale are attorneys with Ward Greenberg Heller & Reidy LLP, representing regional, national and international businesses in all areas of civil litigation counseling and defense.