Should Employers Mandate COVID-19 Vaccines In the Workplace?
Yesterday, the County of Los Angeles announced that it will begin vaccinating residents who work in various business sectors, including agricultural and food; education and childcare; and emergency services starting on March 1, 2021. As California inches its way towards vaccinating more categories of workers, employers are left to grapple with the hard decision of whether to require employees to obtain a COVID-19 vaccination before returning to work in-person.
The rub of this decision was recently the focus of a New York Post article about a restaurant server working in Brooklyn who refused a mandatory vaccine because she was trying to conceive. The restaurant fired the server because she refused the COVID-19 vaccine. In contrast, Iowa lawmakers have advanced a bill to ban employers from mandating these vaccines.
But where does California stand in it all?
Absent future legislation that specifically addresses this issue, and consistent with guidance from the Equal Employment Opportunity Commission (“EEOC”) and Centers for Disease Control and Prevention (“CDC”), California employers have a strong argument allowing them to mandate COVID-19 vaccinations when work requires in-person attendance based on the following:
(1) On December 16, 2020, the EEOC issued much-anticipated guidance on the intersection between a potential COVID-19 vaccine mandate and various federal civil rights legislation impacting the workplace. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Most notably, with respect to the Americans with Disabilities Act (“ADA”), which significantly limits the circumstances in which an employer may require medical exams or make health-related inquiries unless it is both job-related and consistent with business necessity, the EEOC recognized that neither the administration of a vaccination nor the requirement that an employee show proof of vaccination are in and of themselves a “medical examination” or “disability-related inquiry,” and thus do not implicate the ADA. Specifically, the EEOC stated that “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”
The EEOC recognized that an employer’s pre-vaccine inquiries into a person’s medical history could implicate the ADA and such inquiries must be job-related and consistent with business necessity (again, we suspect that this hurdle would not be difficult to overcome if in-person attendance is a requirement of the job and significant community spread continues). If, however, the employer contracts with a third-party to administer the vaccine or encourages employees to vaccinate through the City and County vaccine centers, disability-related inquiries would not apply to the pre-vaccination medical screening questions. This is the more cautious approach, but likely less effective at ensuring vaccinations and not required given the likelihood that an employer will be able to articulate how the inquiry is job-related and consistent with business necessity. Moreover, asking for proof of a vaccine is not a disability-related question triggering ADA protection, and requiring vaccinations does not implicate Title II of Genetic Information Nondiscrimination Act because it does not involve the use of genetic information to make employment decisions.
If an employee refuses to vaccinate due to an underlying health condition, the employer must make an individualized assessment of the direct harm posed by the employee’s refusal to vaccinate. The “direct harm” assessment considers the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm to analyze whether the non-compliant employee poses a “direct threat” to health and safety of himself or others in the workplace and whether a reasonable accommodation would eliminate or reduce the risk associated with the threat posed by the employee’s refusal to vaccinate. Under the current climate in which there is widespread community transmission of the virus, coupled with new and more contagious variants, it’s not hard to imagine a scenario in which an employer requires vaccinations for work performed in-person, especially with respect to manufacturer settings where it may be difficult to ventilate and maintain physical distance or in the food service industry where employees come into contact with the public. If, however, the nature of the work does not require in-person presence, it will be difficult for the employer to satisfy the “direct threat” standard in the face of opposition from an individual with an underlying disability.
In addition, the EEOC considered the implications of a vaccine mandate on Title VII of the Civil Rights Act of 1964, which prohibits discrimination on account of an employee’s race, color, religion, sex and national origin. An employer is required to provide reasonable accommodations respecting an employee’s religious practice (and potential sincerely held objections to medical intervention, including vaccines) unless to do so would create an undue burden. The standard to prove an “undue burden” under Title VII, however, is less stringent than under the ADA and will be satisfied upon a showing of “more than a de minimis cost or burden on the employer.”
Even when workplace exclusion is appropriate because an employee refuses to vaccinate, the EEOC cautions employers against separating the employee and encourages employers to explore accommodations in the form of remote work, unpaid leave and potentially, other workplace schedule changes to limit the unvaccinated employee’s interactions with others.
(2) The CDC encourages employers to implement workplace vaccination programs and to host vaccine clinics for employees during work hours and at no-charge. The CDC touts the associated benefits of such a program as keeping the workplace healthy, reducing absences due to illness and medical treatment, improving productivity and morale and encouraging convenience for employees. Again, while the CDC’s workplace vaccination plan does not take a position on whether the employer should require the vaccine, the CDC’s encouragement of widespread vaccination helps employers articulate the risk associated with allowing employees to continue working in person, without vaccination.
(3) The California Department of Fair Employment and Housing’s Employment Information on COVID-19 webpage and saferatwork.covid19 portal is silent on the issue of mandatory vaccinations, but time after time, the agency has required employers to be vigilant in implementing COVID-19 safety protocols to prevent transmission at work. Employers may inquire as to an employee’s symptoms upon entry, require a temperature check, require viral testing (but not anti-body testing) when job-related and consistent with business necessity, require facemasks to be worn at work and send an employee home when the employee tests positive and/or displays symptoms consistent with COVID-19. In addition, employers face increased financial risk for in-person workers who become sick with COVID and a potential shut down of operations if there’s an outbreak.
Moreover, while the DFEH reiterates that it is unlawful for employers with five or more employees to discriminate or harass an employee because of their race, national origin, disability, age (over 40), and other characteristics and also requires employers to reasonably accommodate employees with a disability, unless an employer shows undue hardship after engaging in the interactive process, the DFEH does not state that mandatory vaccinations are in and of themselves unlawful or have a discriminatory impact on employees with protected characteristics.
In summary, currently there is no authority that prohibits California employers from mandating employees to get the COVID-19 vaccination, especially when the nature of the work requires in-person presence. Even so, employers must take an individualized approach to evaluating any employee’s refusal to be vaccinated, investigate whether the opposition is potentially tied to a protected characteristic such as a covered disability or sincerely held religious belief, and determine whether a reasonable accommodation, short of termination, is available. Again, in such circumstances and unless in-person attendance is a bona fide requirement of the job, the employer must engage in the interactive process to determine whether a reasonable accommodation, such as remote work or a leave of absence, is possible to retain the employee. In addition, if the workplace is unionized and subject to a collective bargaining agreement, the employer must carefully consider the provisions of that agreement and work with union negotiators to achieve a consensus on how to approach mandatory vaccinations. Lastly, if the employer moves forward with a mandatory vaccination program, it should be described in a written COVID-prevention plan and careful consideration should be given towards how to maintain vaccination records in a manner that respects medical privacy laws.