Top (from left): Stephen W. Aronson, Britt-Marie K. Cole-Johnson and Natale DiNatale
Bottom (from left): Abby M. Warren, Kayla N. West and Emily A. Zaklukiewicz
In December, the Food and Drug Administration (FDA) granted emergency use authorization (EUA) for Pfizer's and Moderna’s COVID-19 vaccines. Since then, as of Feb. 2, 2021, 681,472 total cumulative doses of the COVID-19 vaccine have been administered, as reported by the Massachusetts Department of Public Health. Massachusetts is currently in the early stages of Phase 2 of its COVID-19 vaccination distribution plan, and Phase 3, which expands the availability of the COVID-19 vaccine to the general public, is currently expected to launch in April 2021. As the number of COVID-19 cases across the country continues to rise, with the total number of cases in Massachusetts recently surpassing 500,000, employers are grappling with how to manage COVID-19 in their workplaces. With widespread distribution and availability of the COVID-19 vaccine to the general public on the horizon in Massachusetts, employers across all industries may be considering whether to adopt a vaccination policy that requires vaccination as a condition of working or accessing the workplace. However, implementation of a COVID-19 vaccination policy in the workplace raises several legal and practical issues that employers may first wish to consider. This article answers some common questions employers may have about managing COVID-19 vaccination in the workplace.
What is the Significance of the FDA’s Emergency Use Authorization?
One notable risk associated with the COVID-19 vaccine is that its use is authorized by the FDA pursuant to an EUA. An EUA is different than complete FDA approval, and under 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III), the secretary of Health and Human Services may require that individuals be told that they can refuse a product issued pursuant to an EUA. This difference might impact the extent to which employers can mandate COVID-19 vaccination. Because there is little precedent regarding an employer’s ability to mandate vaccinations and to mandate a vaccine that has only had EUA approval, requiring COVID-19 vaccination with EUA approval in the workplace could lead to a considerable risk of litigation from employees or labor unions challenging the mandate.
What is the EEOC’s Position on Mandating the COVID-19 Vaccine?
The Equal Employment Opportunity Commission (EEOC) has taken the position that employers may mandate that employees receive the COVID-19 vaccine, subject to certain limitations. According to the EEOC, administration of the COVID-19 vaccine does not implicate the Americans with Disabilities Act (ADA) because administration of the vaccine is not a medical examination. Under the EEOC’s guidance, employers, regardless of the industry, may require that their employees receive the COVID-19 vaccine without having to show that the mandate is job-related and consistent with business necessity.
However, according to the EEOC, while vaccination is not a medical examination for purposes of the ADA, pre-vaccination medical screening questions likely are disability-related inquiries that must be job-related and consistent with business necessity. Therefore, the EEOC’s guidance advises that if an employer or a third-party vendor engaged by an employer administers the COVID-19 vaccine and asks pre-vaccination screening questions, the employer must show that these pre-screening questions are job-related and consistent with business necessity. Specifically, an employer needs to demonstrate that an employee who does not answer the questions, and thus does not receive a vaccine, will pose a direct threat to the health or safety of the employees or others. To avoid these risks, an employer may choose to require that its employees obtain the vaccine from a third party not associated with the employer. Alternatively, if an employer chooses to offer the vaccine to employees on a voluntary basis, and an employee’s decision to answer the associated pre-screening questions is also voluntary, an employer might not need to demonstrate that such pre-screening questions are job-related and consistent with a business necessity.
Although Massachusetts has not taken a position on whether mandatory COVID-19 vaccination is permissible, Massachusetts has taken steps to implement mandatory flu vaccinations, specifically in light of the COVID-19 pandemic. Thus, for the 2020-2021 influenza season, the Massachusetts Department of Public Health required that certain health care employers (e.g., Massachusetts nursing homes and rest homes) ensure that all personnel were vaccinated against the influenza virus, subject to narrow exceptions. The Massachusetts Department of Public Health also required the influenza vaccine for all students enrolled in child care, preschool, K-12 schools and post-secondary institutions, with limited exceptions. That mandate resulted in litigation, and the Massachusetts Department of Public Health has since announced removal of the influenza vaccine requirement for students enrolled in child care and preschool, as well as primary, secondary and post-secondary education.
How Do Employers Manage Employees Who Refuse the COVID-19 Vaccine?
Recent headlines illustrate many of the challenges associated with employee refusal of the COVID-19 vaccine, especially in certain high-risk industries. For example, many nursing homes and long-term care facilities are facing challenges as high percentages of frontline nursing home staff refuse to receive the COVID-19 vaccine.
The EEOC and the courts have advised that employees may lawfully refuse the COVID-19 vaccine for a number of reasons. Accordingly, employers with mandatory vaccination policies might be required to accommodate employees who refuse the vaccine due to a disability or a sincerely held religious belief. For example, if an employee is unable to receive the COVID-19 vaccine due to a sincerely held religious belief, employers may be required to provide the employee with a reasonable accommodation regarding the vaccination requirement unless it would pose an undue hardship, meaning more than a de minimis cost or burden on the employer. Similarly, if the employee refuses the COVID-19 vaccine due to a disability, employers might be required to provide the employee with a reasonable accommodation with respect to the vaccination requirement unless it would pose a direct threat to the workplace. Notably, even if the “direct threat” standard has been met, employers likely cannot automatically terminate an employee for refusing to get vaccinated, although the employer might be able to exclude the employee from the workplace if there is no way to provide a reasonable accommodation. Although the issue has not yet been addressed, employers likely have similar reasonable accommodation obligations under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B et seq. Employers would be well-advised to train their personnel on how to manage reasonable accommodation requests in this context. Employers may also wish to consider which potential reasonable accommodations could be offered to employees requesting exceptions from receiving the vaccine (e.g., remote work, personal protective equipment, social distancing, isolated work areas, etc.).
If an employee has refused the COVID-19 vaccine for some reason other than a disability or a sincerely held religious belief, employers may wish to evaluate the relevant risks associated with such a refusal. Specifically, if certain employees refuse the vaccine, employers would be well-advised to ensure that other measures are in place to maintain a safe workplace. Additionally, from an employee relations perspective, if an employer seeks to mandate COVID-19 vaccination or terminate employees for refusing to receive the COVID-19 vaccine, there might be negative implications for employee morale and retention. Moreover, employers might not want to take the risk of losing valuable employees who refuse to receive COVID-19 vaccine if such employees can telework or their job duties can otherwise be modified.
Are There Privacy and Confidentiality Concerns?
The EEOC has taken the position that, under the ADA, an employer may generally require that an employee show proof of receipt of the COVID-19 vaccine because such a request is not a disability-related inquiry. However, employers would be well-advised to avoid asking for any additional information beyond the proof itself. For example, it would be prudent for employers to avoid asking questions regarding why an individual did or did not receive the vaccine and to advise employees not to provide any medical information when submitting proof of the vaccination. Any such follow-up questions could potentially implicate the ADA and would therefore need to be job-related and consistent with business necessity. To comply with the ADA, employers also would be well-advised to store any employee medical information obtained in the course of a vaccination program separately from the employee’s personnel file (e.g., in the employee’s medical file) and to keep such information confidential. Lastly, employers may also want to take note that, under the Health Insurance Portability and Accountability Act (HIPAA), there are restrictions on an employer’s ability to confirm an employee’s vaccination records through a health plan.
Are There Any Operational or Workplace Safety Considerations?
Employers may wish to consider whether the availability of a COVID-19 vaccine will impact their plans to return to the physical workplace, or whether it would be appropriate, in accordance with applicable federal, state and local law, to change their policies regarding face coverings, social distancing, in-person meetings, etc. In doing so, employers should remain mindful of their obligations to provide a safe workplace under the Massachusetts Department of Public Health’s Mandatory Safety Standards for Workplaces and sector-specific safety protocols. Additionally, for employers that do not mandate or encourage COVID-19 vaccination in their workplaces, employees may invoke the general duty clause under section 5(a)(1) of the Occupational Safety and Health Act to support a claim that the employer failed to provide a safe and healthy work environment. Similarly, if employers mandate COVID-19 vaccination, it is possible that an injury or illness could occur related to the vaccination, and employees may be entitled to seek relief via workers’ compensation.
Are There Labor or Union Considerations?
The National Labor Relations Board has held that a vaccination policy is a mandatory subject of bargaining. Therefore, before implementing a vaccination policy, employers with unionized employees must either provide the union with notice and an opportunity to bargain about the policy or establish that the collective bargaining agreement permits the employer to do so unilaterally. Employers with unionized employees also likely will be required to bargain with the union about the impact that such a policy will have on employees’ terms and conditions of employment. Moreover, both union and non-union employers should consider the right of employees to engage in concerted activity to advance their interests as employees with respect to the vaccine (e.g., to protest a vaccination policy or lack thereof), as it is unlawful for an employer to interfere with, restrain or coerce employees who engage in such activity for mutual aid or protection. Lastly, as many labor organizations have become increasingly vocal with respect to vaccine policies, employers that fail to communicate effectively could see their non-union employees turn to a labor union to find a voice on the issue.
Should Employers Review or Revise Their Leave Policies?
Some employees may experience side effects after receiving the COVID-19 vaccine. Therefore, employers may wish to revise their leave and/or short-term disability policies to accommodate employees who must remain out of work while they are experiencing post-vaccination symptoms. Employers also should check any paid leave laws, including under the federal Family and Medical Leave Act or Massachusetts Paid Family and Medical Leave law, as to whether such leave would qualify for paid or unpaid leave.
How Can Employers Encourage COVID-19 Vaccination in the Workplace?
Due to the risks associated with mandating the COVID-19 vaccine, employers may instead wish to consider ways they can encourage employees to receive the vaccine or provide access to the vaccine on a voluntary basis, such as by offering participatory rewards or incentive programs, providing access to or covering the cost of the COVID-19 vaccine (e.g., offering vaccination clinics), or by educating employees on vaccination.
As Massachusetts’ COVID-19 vaccine administration efforts continue, employers may wish to prepare for the impact the COVID-19 vaccine will have in their workplaces. In doing so, employers should remain mindful of the various legal and practical implications associated with mandating or encouraging their employees to receive the COVID-19 vaccine. Employers may wish to consult with competent legal counsel about these issues. We note that we are not providing any medical advice or suggestions on these issues, but are raising these issues for discussion only as they relate to employment law.
Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Natale DiNatale, Abby M. Warren, Kayla N. West and Emily A. Zaklukiewicz are all members of Robinson+Cole’s Labor and Employment Group.