By Rob Gilmore & Kirsten Mooney
As you have probably seen, the news is swarming with reports of a potential COVID-19 vaccine. While the “whens,” “whos,” and “what-ifs” of the vaccine are still largely unknown, one thing the majority of outlets can agree on is this: a vaccine is on the horizon.
As of Nov. 23, 2020, three large pharmaceutical companies have reported promising results in the development of a COVID-19 vaccine. Pfizer and BioNTech have concluded Phase 3 of their study and have reported that its version of the vaccine met all the primary efficacy endpoints. Moderna reported that early analysis of its Phase 3 trials show a 94.5 percent efficacy rate of its version of the vaccine. A third company, AstraZeneca, has reported that its version of the vaccine is proving to be highly effective in its late stage trials. Several other companies are also testing for a potential vaccine. The race for a vaccine to end the pandemic is certainly on.
However, once there is a vaccine, what does it mean for employers? The first and most important question is simply this: Can employers require their employees to get the COVID-19 vaccine in order to keep their jobs? The short answer is “yes,” but with certain exceptions.
The Mandatory Vaccination Question
While the question may seem new to our generation – largely due to the COVID-19 pandemic – mandatory vaccination programs have actually been prevalent in certain industries for many years. For example, most healthcare employers already require employees get the flu short regularly. Those vaccinations have been considered medical examinations under the Americans with Disabilities Act (ADA). ADA rules allow employers to require medical examinations only if they are job-related and consistent with business necessity. Requiring a vaccination against a virulent, easily spread virus like the coronavirus, in order to prevent the spread of COVID-19 throughout the workplace, should clearly meet the job-related and consistent with business necessity tests under the ADA. However, certain state laws may be more restrictive, and employers should consider all applicable federal and state laws when they establish mandatory vaccination programs.
Should You Require the COVID-19 Vaccine?
Below is a list of some other considerations for employers when deciding whether to require the COVID-19 vaccine:
- Religious Accommodation Requests under Title VII of the Civil Rights Act of 1964: An employee may assert that they are entitled to an accommodation for religious reasons when the employee refuses to take a required COVID-19 vaccination. Under Title VII, an employee must prove that he or she has a “sincerely held religious belief” in order to establish entitlement to a religious accommodation. Personal, political or even ethical objections are likely not similarly protected. However, even if an employee does prove a “sincerely held religious belief,” an employer may still deny the accommodation if it poses an undue hardship. The undue hardship analysis may include the consideration of harm to the employer, its employees and third parties (e.g. patients and customers). As a result, if an employee claims a religious accommodation in response to a mandatory vaccine policy, employers should consider: (i) whether the employee’s belief is “religious” and “sincerely held” rather than personal, political or ethical, and (ii) whether any type of accommodation (e.g. not requiring the vaccine, remote work, change in schedule, etc.) would cause harm to the employer, its employees or its patients/customers. Employers should also note that the Equal Employment Opportunity Commission (EEOC) has recently released additional guidance on the laws surrounding religious bias/discrimination laws. The comment period on this new guidance is set to end in mid-December 2020. New guidance may change the legal landscape in allowing for employee accommodations and/or defending religious discrimination claims made by employees.
- Medical Accommodations under the ADA: Like that of religious accommodation requests under Title VII, employees may also be able to claim an exception to a mandatory vaccination program due to an existing disability that is recognized under the ADA. Employers may deny an accommodation due to an undue hardship. However, there is a split in the federal circuits regarding whether a sensitivity to vaccinations constitutes a disability. The U.S. Courts of Appeals for the Third and Eighth Circuits reached opposite conclusions under a similar set of facts. The Third Circuit held that a history of allergies and anxiety related to a vaccination qualified as a disability under the ADA while the Eighth Circuit held that alleged chemical sensitivities and allergies to a vaccination did not constitute a disability under the ADA. In light of this split of authority, we would hope that, with a new COVID-19 vaccination, regulators will provide some additional clarity on what constitutes a disability in the context of mandatory vaccinations. Moreover, as public health guidance continues to change regarding the COVID-19 vaccination, employers should be mindful that the legal standards for accommodation requests (whether under the ADA or Title VII) related to the COVID-19 vaccination may also change).
- Potential for an Uptick in Workers’ Compensation Claims: Workers’ compensation laws are state laws. Thus, whether and the extent to which workers’ compensation laws apply to negative side effects and other harm caused by a COVID-19 vaccination will vary state-by-state. A particular state may or may not provide workers’ compensation benefits to an employee who has had a negative reaction to a vaccine required or mandated by his or her employer.
- Tort Law Claims: There may also be additional exposure to liability for employers under civil tort laws as well. Generally, employers are protected against workplace-based tort claims by the workers’ compensation laws. However, there is an exception to that protection when an employer engages in intentional misconduct. While it is unlikely that the imposition of a mandatory COVID-19 vaccine policy would meet that standard, it is possible.
- Union Considerations: Unionized employers may want to consult their collective bargaining agreements to determine whether their duty to bargain over workplace issues extends to the imposition of a mandatory vaccination program. Employers whose employees have not been organized by a union but who are facing an actual or potential organizing campaign may want to weigh the risks of implementing a mandatory vaccination program on their union avoidance strategy. If employees feel pressured to do something with which they disagree or feel like their concerns are not being heard, they may be more likely to look to a labor union for support and guidance. Moreover, both unionized and non-unionized employers should be mindful of employees’ right to engage in protected concerted activity. If employees join together in protest of an employer’s vaccination program and the employer interferes in any way, the employer may run afoul of Section 7 of the National Labor Relations Act.
- Is a Statewide Mandate Possible: It is possible that state governors may seek to mandate a COVID-19 vaccination. Under the Tenth Amendment to the United States Constitution and certain federal case law precedent, such statewide mandates are allowed. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). However, if a state imposes a vaccination mandate, it is likely that lawsuits will challenge their legality. And, the Supreme Court of the United States may ultimately be called upon to determine if these statewide mandates are, in fact, constitutional.
The subject of COVID-19 vaccination is likely to be a troubling area for employers. They will have to weigh the potential legal exposure and increased risks of mandating all employees to receive a COVID-19 vaccination against the realistic benefit of such a policy. This analysis will certainly vary from employer to employer. Of particular note, an August 2020 study found that one-third of Americans would refuse a COVID-19 vaccination, even if one were available. And, given the large number of people who refuse to wear a mask (which is much less invasive), employers can likely expect to receive a significant number of objections to requiring a COVID-19 vaccination. Moreover, administrative agencies, including the EEOC and OSHA, have yet to publish guidance on the impending COVID-19 vaccination in the workplace to assist companies in determining a plan of action.
An Employer should consider whether a mandatory vaccination policy is necessary for its business. If it does believe it is necessary, it may want to consider limiting the mandate to certain departments and/or worksites that are of higher risk of contracting the virus. A lesser step may to merely recommend that employees receive the COVID-19 vaccination, rather than requiring it. However, before deciding not to mandate the test, the employer should consider that failing to implement legally adequate precautions to prevent its employees from becoming infected may also create certain legal exposure for the business.
In short, this is a rapidly evolving area of the law, as it is likely that current guidance may be changed or amended, and additional guidance may be released. Just last week, Ohio Governor Mike DeWine announced that Ohio would be receiving its first round of a COVID-19 vaccination by December 15, 2020. Other surrounding states are sure to follow. As a result, employers should begin determining a plan of action with regard to the COVID-19 vaccine sooner rather than later.
KJK attorneys are monitoring this area very closely, and we will continue to keep you informed. Should you have any questions, please contact Rob Gilmore (rsg@kjk.com / 216.736.7240), Kirsten Mooney (kbm@kjk.com / 216.736.7239) or any of our Labor & Employment professionals.