A Vaccinated Workplace is a Happy Workplace, Right? Not Always.

The approval of two—and potentially more—COVID-19 vaccines by the federal Food and Drug Administration (FDA) has been met by employers with optimism that their safe-workplace woes related to COVID-19 are at long-last coming to an end. Although there is cause for hope, employers should beware of the legal pitfalls of mandating a vaccination program among its workforce.

Can We Mandate the Vaccine?

As the impending likelihood that a COVID-19 vaccine will soon become available to essential workers and the general public, many employers are considering implementing a mandatory vaccination program for employees. For some employers, a mandatory vaccination program may be attractive because it could finally signal the end of exhaustive and costly workplace safety measures. For others, it is the positive marketing effects that a fully vaccinated workforce could have on the public’s perception of their business. Although these—and other motivations—are both real and legitimate, implementing a mandatory vaccination program requires that the employer ensure its program does not run afoul of Title VII of the Civil Rights Act of 1964, as amended, and other state and federal anti-discrimination laws.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC)—the entity charged with oversight over most federal anti-discrimination employment laws—issued new guidance related to mandatory COVID-19 vaccination programs. As part of its guidance, the EEOC advised that employers cannot mandate that a worker receive a COVID-19 vaccine if:

• The worker has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccination; or
• The worker has a disability that prevents him or her from receiving the vaccination.

In the event either of these two circumstances exists, an employer may not automatically terminate the worker.

Rather, in cases of religious objectors, the employer must attempt to accommodate the worker’s beliefs if it does not pose an “undue hardship” on the employer, which is defined as “having more than a de minimis cost or burden on the employer.”

When a disability-related issue prevents a worker from adhering to an employer’s vaccination mandate, the EEOC has advised that the employer should undertake a case-by-case analysis to determine whether that person poses a “direct threat” to workplace health and safety by remaining unvaccinated. If an employer determines that such a threat exists, the employer must attempt to provide the worker with a reasonable accommodation—such as teleworking—to mitigate the health risks associated with the un-vaccinated worker’s presence on a job site. However, only if the worker’s presence on the job site poses a direct threat to others that cannot be reduced to an acceptable level through a reasonable accommodation, may an employer prohibit the worker from entering the job site.

Can We Ask Questions?

Although, the EEOC guidance explicitly stated that an employer inquiry into whether a current or future employee has received a COVID-19 vaccination does not qualify as a “medical inquiry” for purposes of compliance with the Americans with Disabilities Act (ADA), prescreening vaccination questions that are likely to elicit information about a disability may be prohibited under the ADA. As a result, to the extent an employer requires a worker to provide information as to the reasons he or she has not received a COVID-19 vaccination, the employer may wish to explicitly warn the employee not to provide any medical information that could implicate the provisions of the ADA. Similarly, the EEOC’s guidance states that employers who request proof of a COVID-19 vaccination do not trigger the Genetic Information Nondiscrimination Act (GINA), which shields individuals from workplace bias on the basis of their genetic information. However, pre-screening questions seeking genetic information could run afoul of GINA.

Disparate Impact Concerns

In addition, although not expressly addressed by EEOC’s recent guidance, employers should also be advised that any express requirement that existing or future members of its workforce must be vaccinated could be subjected to allegations of disparate impact discrimination. Title VII prohibits practices that are fair in form, but discriminatory in operation or practice. For instance, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group (such as underrepresented ethnic or racial minorities) and the employer cannot demonstrate that the policy or practice is job-related or a business necessity. Because of the high percentage of individuals from underrepresented communities that have expressed reluctance to receive a COVID-19 vaccination, a mandatory vaccination program could be subject to attack on a basis similar to criminal record screenings because of the disproportionate impact on these communities absent a showing of business necessity.

Bottom Line

Although a mandatory vaccination program may seem—at first glance—to be a panacea leading to a return of workplace “normalcy,” such programs are not without legal pitfalls. Before implementing a mandatory vaccine program, employers should be mindful to address (1) religious and ADA implications; (2) medical pre-screening questions; and (3) disparate impact concerns.