From left: Michelle De Oliveira and Valerie Samuels
The COVID-19 pandemic has raised novel questions for employers. Now, as COVID-19 vaccines become more widely available to the general public, employers must grapple with new questions. Here, we explore whether employers can mandate that employees get COVID-19 vaccines and, if employers do so, how to address the legal issues that arise from a vaccine mandate.
On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers (“EEOC Guidance”) and included guidance and information relating to COVID-19 vaccinations.
Key takeaways from the EEOC Guidance include:
- Employers may mandate that their employees get vaccinated under federal law. The EEOC Guidance provides that employers can require that employees get vaccinated before being permitted in the workplace; however, the reality is much less straightforward, as discussed below.
- Administration of an FDA-approved vaccine is not a medical examination. The EEOC defines a medical examination as “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Although administering the vaccine itself is not a medical examination, pre-screening questions prior to the vaccine may implicate the Americans with Disabilities Act’s (ADA’s) prohibition on disability-related inquiries.
If the employer is involved in the administration of the vaccine, it must show that any pre-screening questions are “job-related and consistent with business necessity.” To comply with this standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the pre-screening questions and is not vaccinated will pose a “direct threat” to the health or safety of himself or others. A direct threat is “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.”
- Asking employees for proof of vaccination is not a disability-related inquiry. But, if the employer asks follow-up questions, such as why the employee was not vaccinated, it may be a disability-related inquiry, as the question may elicit information about a disability. Any such questions must be “job-related and consistent with business necessity.” Employers should also instruct employees not to provide any medical information contained in proof of vaccination documentation.
Reasonable Accommodations for a Disability and/or Sincerely Held Religious Belief
Despite the EEOC having cleared the way for employers to implement a mandatory COVID-19 vaccine policy in the workplace, at least two critical issues are on the horizon for employers to wrestle with. First: will there be permissible (or, better yet, required) exceptions to a policy that requires all employees to get vaccinated? Second: when an employer receives a request for an accommodation — or an exception to the policy — because the employee is unable to be vaccinated, how are employers to maneuver the applicable legal landscape to avoid a litigation landmine?
Each issue is explored further below.
Reasonable Accommodations: Exceptions to a COVID-19 Vaccine Mandate
The EEOC Guidance, allowing employers to require employees to be vaccinated, cannot be read in a vacuum. Indeed, employers must continue adhering to federal and state laws relating to reasonable accommodations in the workplace. An employee may have a legitimate reason to be exempt from a mandatory workplace vaccine policy.
For this reason, the short answer to the question of whether there will be permissible (or required) exceptions to a mandatory vaccine policy is: it depends. Ultimately, it will depend on whether the employee is exempt from the mandatory COVID-19 vaccine policy because of either a disability or a sincerely held religious belief (i.e., a reasonable accommodation), and whether the reasonable accommodation creates an undue hardship for the employer.
Responding to Reasonable Accommodation Requests
An employer who receives a request for a reasonable accommodation must engage in an interactive process to identify accommodations that do not create an undue hardship for the employer. This process involves assessing, among other things, the nature of the employee’s position within the workplace. Employers may request documentation from the employee in support of the accommodation request. The EEOC has indicated that the number of employees who received the vaccine, and their degree of contact with others whose vaccination status is unknown, may impact the undue hardship analysis.
According to the EEOC, employers can rely on recommendations from the Centers for Disease Control and Prevention (CDC) when deciding the availability of effective accommodations that would not pose an undue hardship.
Moreover, the ADA permits employers to have a 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.” If a safety-based qualification standard (e.g., vaccination requirement) screens out a disabled employee, the employer has the burden to demonstrate that an employee who did not receive the vaccine will 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.” This requires a fact-specific assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
Before an employer concludes that an individual would pose a direct threat, it must determine if an unvaccinated employee will expose others to COVID-19 at work. If the employer determines that an individual who cannot be vaccinated poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation (absent undue hardship) to eliminate or reduce the risk posed by an unvaccinated employee. For example, the employee may be able to telework or be on leave.
Similarly, if an employee claims that a sincerely held religious belief, practice or observance prevents the employee from getting a COVID-19 vaccine, “the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII….”
Employers bear the burden to demonstrate that the requested accommodation creates an undue hardship, (e.g., “more than a de minimis cost or burden on the employer.”). Employers must also “ordinarily assume” that an employee’s request for religious accommodation is based on a sincerely held religious belief. If there is an objective basis to question the religious nature or sincerity of a religious belief, practice or observance, the employer may request additional information.
Employers may exclude employees from the workplace if there is no reasonable accommodation available — but cannot automatically terminate the employee. Rather, employers must review applicable EEO laws or other authorities for guidance.
Pregnant or breastfeeding employees may also pose challenges for employers who wish to mandate COVID-19 vaccines in the workplace. According to the CDC, there is limited data regarding the safety of COVID-19 vaccines for pregnant women at this time. Employers likely will receive accommodation requests from workers in these categories. If these employees have been successfully working remotely during the pandemic, continued remote work is likely to be a reasonable accommodation.
Bargaining Obligations for Mandatory COVID-19 Vaccination
Mandatory vaccination policies are a required bargaining subject; therefore, an employer must bargain with its employees’ collective bargaining representative over the implementation of such a policy unless an exemption excuses the employer from its bargaining obligation.
At the start of the pandemic, the National Labor Relations Board’s (NLRB’s) then-general counsel, Peter Robb, released GC Memorandum 20-04 on March 27, 2020 (the “GC Memo”), which summarizes the leading NLRB cases addressing the duty to bargain in emergency situations like the coronavirus pandemic. In large part, the cases in the GC Memo highlight that an employer may be excused from taking unilateral action without first bargaining with its employees’ collective bargaining representative where “economic exigencies” “compel” the employer to take swift and immediate unilateral action.
Now that employers find themselves beyond the initial shock of the pandemic, and are well-settled into their pandemic operations, they should not rely on the defense of “economic exigencies” described in the GC Memo to implement a mandatory vaccine policy unilaterally. Rather, once an employer decides that it wants to require its unionized workforce to take the vaccine as a condition of employment, it should follow traditional bargaining principles, and first determine whether it is exempt from its bargaining obligation over the implementation and/or effects of a mandatory vaccine policy because the plain language of the parties’ collective bargaining agreement grants it the right to act unilaterally under the NLRB’s new “contract coverage” waiver doctrine.
As an initial step, it may be best to start one’s review by reading the management rights clause, and/or health and safety clauses in the agreement. If the plain contractual language shows the employer’s mandatory vaccine policy falls within the scope of management’s right to act unilaterally, and the employees’ representative waived its right to bargain over the issue under the recently established “contract coverage” test, an employer should work with counsel to draft a policy that is reasonable in both purpose and application so that the policy may withstand any challenge from the representative on the basis that the policy is an unreasonable exercise of the employer’s contractual rights.
Once the policy is drafted, an employer should provide the employees’ representative with notice of its intent to implement the policy and, if required to do so, prepare to bargain with the representative over any effects that may arise as a result of the implementation of the policy, including issues regarding how employees will receive the vaccine, who may bear the cost of the vaccine, how much time an employee has to obtain the vaccine, and whether/what discipline will be imposed on an employee for failure to comply.
If the employees’ representative has not waived its rights to bargain over the effects of the mandatory vaccine policy, an employer will need to carve out sufficient time to bargain with the representative prior to actual implementation, as discussed below. Also, given the novelty of the “contract coverage” waiver doctrine, and that it will likely revert to the prior pro-union “clear and unmistakable” waiver test with the new administration’s NLRB appointments later in 2021, an employer may wish to err on the side of bargaining, even where it may believe there was a contract waiver, to avoid protracted litigation.
An employer that does not have the authority to unilaterally impose a mandatory vaccine policy as a matter of contractual right, and nonetheless seeks to move forward with a mandatory vaccination policy, should notify its employees’ collective bargaining representative of its desire to implement such a policy and provide the representative with an opportunity to bargain over the policy and its effects on mandatory subjects of bargaining (e.g., wages and other terms and conditions of employment). Following the union’s demand to bargain, prior to implementation, the employer must bargain with the union in good faith until resolution or impasse.
Mandatory vaccination policies in the workplace remain a controversial topic given society’s differing views on their efficacy. Coupled with the general reluctance some employees may have given the novelty of the coronavirus vaccine and limited data on its side effects, an employer should anticipate a contentious negotiation with its employees’ representative over this issue, and keep this in mind as it creates a timeline around when it wants to implement the policy.
As an alternative, an employer should consider whether, based on its unique operations, it is appropriate to implement a voluntary vaccination policy that incentivizes, rather than requires, an employee get the vaccine.
The COVID-19 pandemic has created a litany of workplace issues. As the vaccine becomes widely available, it will inevitably generate additional questions for employers and their counsel. The impact of COVID-19 in the workplace and the legal landscape have continued to change. There is no magic formula for maneuvering the implications of mandatory COVID-19 vaccine workplace policies, and the expectation is that such policies will generate additional questions for employers nationwide.Michelle De Oliveira, Esq. is a litigator who handles, among other things, employment-related disputes. This includes, but is not limited to, wage and hour, leave entitlements, disciplinary actions, internal investigations, restrictive covenants, discrimination and harassment matters, as well as drafting of employment policies and contracts. De Oliveira has recently been appointed as vice chair of the Massachusetts Bar Association’s Labor & Employment Section Council. De Oliveira regularly speaks and presents at seminars and webinars on employment-related matters.
Valerie Samuels, Esq. is a partner in the Labor & Employment Group at Arent Fox LLP. She is a member of the Massachusetts Bar Association’s Labor & Employment Section Council. Samuels represents management and executives in the full range of employment issues. She also mediates and arbitrates employment disputes and serves on the American Arbitration Association employment arbitration panel. For more information about Samuels, visit www.arentfox.com/attorneys/valerie-samuels.