A Sticky Issue

Can employers mandate a COVID vaccination?

By Terry Troy

While the Equal Employment Opportunity Commission (EEOC) isn’t expected to officially publish its guidelines on mandatory COVID vaccinations until March, its recent guidance on the issue has paved the way for employer-mandated vaccines. However, the EEOC guidance does not give carte blanche to employers.

It’s a very sticky issue and may ultimately force employers and employees into untenable positions: on one hand, an employer seeking to create a safer and more normal workplace; on the other hand, employees unwilling to get vaccinations left feeling that their privacy and rights may have been violated.

The issue of whether mandated vaccinations are considered “medical examinations” under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964, has been the subject of several articles in the National Law Review.

“The current information from the EEOC is that employers can mandate a COVID vaccination, except with employees that have a disability or religious objections,” says Jonathan T. Hyman, an employment attorney and partner with the Cleveland-based firm of Meyers, Roman, Friedberg & Lewis, who has represented businesses in the small and big cap space for some 24 years. “But it has to be a bona fide disability for which a vaccine would not be indicated, or it has to be a sincerely held religious belief, practice or observance.”

“If an employer mandates that their employees get a COVID vaccination, the primary exception for people who are uncomfortable with getting vaccinated would be for a disability or if it is against their religious beliefs,” says Peter Friedmann, an employment attorney and co-founder of the Friedmann Law Firm, an organization with offices in Cincinnati, Columbus and North Royalton that represents employees in legal actions against their employers. “If they are still required to be vaccinated despite those exceptions, they can bring suit against the company for a violation of his or her legal rights.”

Peter Friedmann

While The Friedmann Law Firm represents employees in matters against employers involving issues ranging from discrimination and harassment, unpaid wages or overtime, contract issues and other disputes, it has yet to see any cases involving mandatory vaccinations.

“We are communicating with a lot of other attorneys from different organizations that are anticipating this [mandated vaccinations] to come up as an issue,” Friedmann says. “However, we are not seeing it too much from our clients as yet. The EEOC guidelines are expected to be out by March, and that should be a good starting point for employees and employers to look at to understand what they should be doing.”

But should employers mandate COVID vaccines?

“That’s the right question employers should be asking themselves,” says Sharon DeLay, SHPR, SHRM-SCP and president and founder of GO-HR, a human resource management and consulting firm headquartered in Columbus. “We do HR consulting for small businesses and part of that includes impressing on them the legal obligation they have to provide a safe workplace for their employees.”

According to the “Consumer Engagement in Health Care Survey” from the Employee Benefit Research Institute and Greenwald Research, receiving a vaccination is not likely to be a problem with 55% of the adult U.S. population. However, the survey also found that 12% were not sure they would get a vaccination and 9% said “it depends.” That leaves 24% of the population that is definitely against getting a vaccination, let alone one that is mandated.

Like so many people, DeLay has concerns about the vaccine.

“It’s been rushed to market and there are no studies addressing the real or imagined long-term ramifications of the vaccine,” she says. “Listening to employees’ concerns needs to be balanced with wanting to ‘get past this’ and ‘return to normal.’ While untested in the courts because it is very early in the vaccine process, what if forcing your employees to get vaccinated causes an allergic or other medical reaction that is debilitating or, worse yet, deadly? But for the mandate by the employer, would the employee be healthy and/or alive?”

Sharon DeLay

However, if an employer does not require it and an employee in the organization subsequently gets the virus, would mandating the vaccine have ensured the employee would not have been infected?

“That’s pretty tough to trace and prove, but if, during the process of trying to determine where the employee got the virus, it is found that the company was lax in terms of safety and cleaning protocols, then a case could possibly be made that the company did not meet its obligation to provide to ‘its employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…’” says Delay, quoting Section 5(a)(1) of the Occupational Safety and Health Act, also known as the General Duty Clause.

As with the general population, there are many lawyers who are pro-vaccination.

“I think employers should require vaccination to ensure the safest workplaces possible for workers,” says Tod Thompson, an employment lawyer with a nationwide practice who has offices in Cincinnati. “Employees have the right to be free from unlawful workplace discrimination and retaliation, and the right to a safe workplace.”

There are business exceptions based on the size of the company, says Thompson. Title VII and the ADA cover employers with 15 or more employees. Employers smaller than that would not be required to accommodate a sincerely held religious belief or disability under those federal laws.

“However, employers with four or more employees would still be required to provide reasonable religious or disability accommodation under Ohio’s Civil Rights statute,” Thompson adds.

“Relative to vaccination policies, disabled employees may request reasonable accommodation if they suffer a disability that would preclude adherence to the policy. Employees who sincerely hold religious beliefs precluding vaccination may request reasonable accommodation as well,” Thompson adds.

“Employers would have to ascertain whether such requests would impose an undue hardship on their operations. And I believe as part of that assessment, employers would also have to consider whether accommodation would make the workplace less safe for other employees. For example, would the workplace become riskier to older employees, employees with other disabilities or illnesses?”

What might some typical accommodations be? One could be working from home, or a temporary unpaid leave of absence until herd immunity is reached. In order to require vaccination, employers also would have to ascertain the difference between what would be seen as a bona fide religious exemption and a philosophical belief.

“Just because you are an anti-vaxer doesn’t mean your anti-vaccination beliefs are grounded in a religious belief or practice,” says Hyman. “There may be some overlap, but not a perfect [alignment] between the anti-vax movement and the religious exception that Title VII requires.”

So what should be done with those people who are against the vaccination on purely philosophical grounds? What about those who cannot claim an exemption from a mandated vaccine program due to disability or religious belief?

“Just because the law says you can, doesn’t mean that you should,” says Hyman. “My mantra is educate don’t mandate.”

Hyman agrees that most people will be anxious to get vaccinated, citing a recent survey by Pew Research that puts the number of people willing to participate in a vaccination program at closer to 60%.

“A lot of people will be gung-ho about getting vaccinated, and there are another 20% to 25% that absolutely won’t get it,” says Hyman. “Then you have another 15% to 20% who are on the fence. If you have a mandatory policy, you may alienate some of those people on the fence who think that your mandate is an invasion of their privacy.”

So the goal as employers should be educating individuals on the fence with the safety and benefits of receiving the COVID vaccination, says Hyman. With those people pushed to the side of pro-vaccination, herd immunity can be easily achieved. The CDC (Centers for Disease Control and Prevention) can help with your education effort.

“They have created a microsite of materials for employers that includes posters, fact sheets, pamphlets and other educational materials,” he says, “which you can give to employees to help explain how vaccinations have been vetted and why they are safe.”

In addition to education, incentive programs can also be helpful, says Hyman. However, you must be careful. Some employers already are offering their employees a financial incentive to obtain the COVID-19 vaccine when it becomes available.

“Retailers such as Trader Joe’s, and Dollar General, and Instacart are offering small incentives such as a couple of hours of additional paid time off, or nominal (e.g., $25) stipends,” says Hyman. “Nursing homes, whose employees come in contact with our most vulnerable population, are offering similar incentives.”

But use caution when using such programs.

“If you are making incentives available to those getting a vaccine, you must also make those same incentives available to those who are not participating,” says Hyman. “if someone opts out of a vaccination program for a religious reason or disability, and you are not providing them with those same incentives, you are actually discriminating against them by not providing them an incentive they otherwise would have qualified for had it not been for their disability or religion.”

You should also make sure the incentive is done within the bounds of equal employment opportunity regulations. In addition to the exceptions for employment disabilities under the ADA and sincerely held religious beliefs, incentive programs must comply with the EEOC’s wellness program guidelines.

“Admittedly, these regulations will not be final until March 8. Given that COVID-19 vaccinations will stretch for months beyond that date, however, employers should be aware of these rules and the risks they pose,” says Hyman. “Under these proposed and soon to be final rules, employers may not offer any more than a ‘de minimis incentive’ to encourage employees to participate in a wellness program such as one that incentivizes the receipt of the COVID-19 vaccine.

“The EEOC does not define ‘de minimus,’ but uses the example of a water bottle or a gift card of modest value as ‘de minimus’ and a $50 per month reduction in annual health care costs, paying for an annual gym membership, or an airline ticket as ‘not de minimus.’” adds Hyman.

Above all, if there is any problem, open communication between the employer and the employee is critical.

“If an issue arises, both the employee and the employer should try to engage in a dialogue to explore alternative options and potential resolutions,” says Friedmann. “In fact, there is more of a legal obligation for an employer to engage in that dialogue if the employee claims a legal exemption.”

However, Friedmann also offers some sound advice for employees.

“If there is an impasse, then before you make any decision or if you anticipate any kind of adverse employment action coming, you should reach out to an attorney for a consultation just so you understand your rights and obligations,” Friedmann adds.