As the country continues to implement the COVID-19 vaccine distribution in phases, employers may deliberate whether to encourage voluntary compliance or mandate employee vaccination.
The Equal Employment Opportunity Commission (EEOC) and Occupational Safety and Health Administration (OSHA) have both issued guidance regarding the pandemic. Following the Pfizer-BioNTech COVID-19 vaccine Emergency Use Authorization (EUA) by the Food and Drug Administration (FDA), the EEOC promoted guidance for employers regarding employee vaccines in relation to the American Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) regulations. Comparatively, OSHA does not mandate employee vaccinations—their focus is on employee safety from spread and contraction.
The EEOC, which enforces the ADA and Title VII, has issued guidance regarding vaccines in the workplace. New regulations from the EEOC do not prevent employers from making employee vaccinations a mandatory condition, but do impose many complications for enforcement.
The EEOC explains an employee may be entitled to a mandatory vaccine exemption based on a disability that prevents the employee from getting the vaccine. The exemption would be recognized as a reasonable accommodation. The employer would be required to grant the accommodation unless it creates the employer an undue hardship. An undue hardship, as defined by ADA, is an “action that imposes a significant difficulty or expense” in reflection of factors, including an employer's size, financial resources, and operational nature and structure.
The EEOC also states that, under Title VII, employees with genuinely held religious beliefs may be entitled to an exemption from a mandatory vaccination. This too would be recognized as a reasonable accommodation. An undue hardship under Title VII is defined as a “request that results in more than a de minimis cost to the operation of the employer’s business.”
The ADA also permits employers to have “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Not-for-profits may be especially vulnerable to this qualification standard simply because of the nature of their business at potential worksites. It is advised that employers screen individuals assessing four factors:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
This assessment determines whether the unvaccinated employee poses a direct threat in exposing others to the virus. These exemptions and the discrimination risk posed by mandated employee vaccinations leads the EEOC to advise employers to encourage vaccination rather than mandate it.
The OSHA directive states employees can refuse any vaccination based on a reasonable belief their underlying medical condition creates a tangible danger of serious illness or death. These employees are also recognized as possibly being protected under Section 11(c) of the Occupational Health and Safety Act of 1970 pertaining to whistleblower rights. The organization does encourage employers to make complimentary vaccines available to eligible employees or provide information and training on the benefits and safety of vaccines. The guidance also discourages employers from having differing safety standards for vaccinated versus unvaccinated employees.
Not-for-profit organizations must review multiple considerations prior to implementing a decision to encourage or require employees to receive a COVID-19 vaccine. Employers should consider the following for an evaluation of options:
Undue Safety Burdens
Regardless of a vaccine mandate or encouragement, employers will be challenged to determine and evaluate whether unvaccinated employees pose an undue safety burden to their coworkers. Employers must consider whether precautions can be implemented to protect employees, including:
- Social Distancing
- Employee Mask Requirements
- Telecommute/Remote Arrangements
Colleges and universities have a history of mandating vaccines to protect those on campus. Several public and private universities have already begun their first steps in requiring students to be vaccinated come fall 2021, and some are even making on-campus vaccination sites available.
Any COVID-19 vaccine employee mandate requires employers to prepare for workers’ reasonable ADA or Title VII exemption accommodation. A case-by-case assessment should be performed but could still leave organizations open to legal action should an exemption request be wrongly denied.
Legal Risk Evaluation
Employers should consider potential legal claims if they require employees to be vaccinated. Any employee could attest liability to an adverse vaccine reaction or development of subsequent health problems. Prior to implementation, employers should consult with legal counsel to discuss the implications and preferable action for their organization. Several states have already introduced legislation regarding COVID-19 vaccine mandates in higher education.
Regardless of whether employers require or mandate COVID-19 vaccination, several logistical elements should be contemplated:
- Will employers have onsite vaccination clinics?
- What vaccine will be used and who will disperse?
- Who will pay for administrative costs for onsite vaccination?
- Who will track compliance for offsite vaccinations?
- Will the employer offer compensation for receiving the vaccine?
- Will the employer offer complimentary time off for employees who have adverse reactions to the vaccine?
For More Information
Not-for-profit organizations and their board of directors should not wait to begin discussions in regard to COVID-19 vaccines and possible staff mandate. For more information on the COVID-19 pandemic and your risk as an employer, please contact us.
Looking for more COVID-19 resources? Visit our resource center for expertise on impacts to expect and how your business can respond.
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