Employers want to maintain safe workplaces for their employees, contractors, vendors and customers—whether that is an office environment, manufacturing facility or construction site. Over the past year, however, what many consider to be a “safe workplace” has taken on new meaning due to the global COVID-19 pandemic. Employers have been required to adopt new practices and procedures, such as increased PPE usage, social distancing and heightened sanitation protocols, to ensure that their workplaces are safe. Now, as vaccines for COVID-19 are approved and become available, employers want to know whether they can require employees to be vaccinated as part of their safety program.

Recent EEOC Guidance

According to guidance issued by the EEOC on December 16, 2020, the short answer is that, yes, in most cases employers can require employees to receive the COVID-19 vaccine as a condition of employment; however, there are several important exceptions. First, under the Americans with Disabilities Act, employers have a duty to provide a reasonable accommodation to employees who cannot receive the vaccine due to a medical disability. In these situations, the employer must determine, on a case-by-case basis, whether the unvaccinated employee poses a direct threat to the health or safety of individuals in the workplace. If so, the employer must next determine whether a reasonable accommodation (such as permitting the employee to work from home) is available that, absent undue hardship on the employer, would allow the unvaccinated employee to continue working without posing such a threat.

Importantly, if there is no reasonable accommodation that can be made, the employee may be physically excluded from the workplace, but this does not necessarily mean the employee can be terminated. According to the EEOC guidance, employers must determine if the employee is eligible for a leave of absence or some other form of protection under federal, state or local law or under the employer’s own policies before making a decision to terminate.

A similar exception exists under Title VII of the Civil Rights Act of 1964 for employees whose sincerely-held religious beliefs, practices or observances prevent the employee from receiving the vaccine. In such a case, the EEOC guidance explains that the employer must provide the employee with a reasonable accommodation unless doing so would impose an undue hardship on the employer. “Undue hardship” in this context has been construed to mean anything imposing more than a de minimis cost or burden on the employer.

Given the severity of the Coronavirus pandemic, employers can make a strong argument that allowing unvaccinated workers in the workplace imposes more than a trivial burden on the employer, but such an inquiry still needs to be made on a case-by-case basis. As part of this process, the employer should consider whether the employee could work remotely or on a different schedule, along with other potential accommodations. If no accommodation is available, the EEOC guidance provides that the employer should again consider whether any other rights apply to protect the employee before making a decision to terminate.

What About Federal Labor Law and State Law?

Although federal employment law may permit mandatory vaccine policies, there are other laws to consider. For example, employers with a unionized workforce are generally required by federal labor law to bargain with the union before making unilateral changes to the terms and conditions of employment. This means that, unless the applicable collective bargaining agreement provides otherwise, employers with a unionized workforce will typically need to negotiate and reach a memorandum of understanding with the union before implementing a mandatory vaccine policy.

Additionally, all employers should carefully consider applicable state law before requiring employees to be vaccinated. Currently, at least nine states are considering legislation that would prohibit employers from requiring employees to receive the COVID-19 vaccine as a condition of their employment or from retaliating against an employee who refuses to be vaccinated. The proposed legislation varies widely from state to state and may change rapidly.

Workers’ Compensation Issues

Although the vaccines approved so far appear to be safe, there have been some adverse reactions, raising concerns for employers about potential liability to employees who have a negative reaction to a vaccine provided by the employer. Liability protection for employers has been hotly debated over the past year. While protection does not appear to be forthcoming on the federal level, more than a dozen states have passed so-called “virus shield laws” which provide broad liability protection for employers (and businesses in general) from claims related to COVID-19 absent a showing of gross negligence or intentional misconduct.

Further, most states already provide employers some protection from general tort liability by requiring employees to pursue work injury claims against their employer through the workers’ compensation system. Employers considering mandatory or even voluntary vaccine policies do need to be aware that there is precedent for imposing workers’ compensation liability on employers to employees who suffer a negative reaction following an employer-provided vaccine. Prior to the current COVID-19 pandemic, courts in California, Delaware, Florida and Texas found that negative reactions following voluntary job-related vaccinations (primarily involving flu shots) were compensable.

Some Closing Thoughts

Vaccination can be a powerful tool for ensuring safe workplaces, but it also carries certain inherent risks. Employers considering mandatory vaccine polices need to be aware of these risks and the legal implications of their policy decisions. Employers also need to consider the impact that any new vaccine policies may have on employee morale. For this reason, many employers have decided to offer the vaccine to their employees on a voluntary basis or to simply encourage their employees to be vaccinated. Still, others have decided that a mandatory vaccine policy is best for the morale of their workforce. In either case, employers need to consult their labor and employment counsel regarding these important decisions and should also ensure that their employees are afforded an appropriate avenue to discuss any questions or concerns they may have regarding any vaccine policy implemented by the company.