Mandatory COVID-19 vaccination policies in the workplace
As COVID-19 vaccines became readily available, employers must examine the legality of mandatory and voluntary vaccination policies. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance for employers regarding mandatory vaccination policies, employer-provided vaccine incentives, confidentiality, and accommodating workers who may be unable or unwilling to obtain a vaccination.
Specifically, the EEOC’s guidance states employers may require employees who are physically entering the workplace to be vaccinated for COVID-19. Employers with mandatory vaccination policies should be prepared for objections and accommodation requests from employees. Employers must also comply with reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, and other equal employment opportunity considerations for those who are unable to receive the vaccine due to a qualifying disability or sincerely held religious belief.
If an employee cannot get vaccinated due to a disability or religious belief, the employer may not require vaccination for that employee unless the employer can demonstrate the employee would pose a direct threat to the health or safety of the workplace. This requires an individualized assessment of the employee’s present ability to safely perform the essential functions of the job, assessed with reference to 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. An employer’s determination as to whether an employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.
Even where the presence of a non-vaccinated employee would pose a direct threat, employers must make efforts to accommodate employees with qualifying disabilities or religious beliefs where such an accommodation does not present an undue hardship. Specifically, employers must engage in the interactive process and consider reasonable accommodations for these employees. The EEOC’s guidance provides helpful examples of accommodations employers may offer including wearing a face mask, working at a social distance from co-workers or non-employees, working a modified shift, getting periodically tested for COVID-19, being given the opportunity to telework, and accepting a reassignment.
The EEOC’s guidance also provides that employers may inquire about an employee’s vaccination status without violating the ADA’s prohibition on disability-related inquires. Specifically, employers may request proof of vaccination. Any documentation confirming an employee’s COVID-19 vaccination status is considered confidential medical information, and employers must keep this information confidential and stored separately from the employee’s personnel file.
The complete guidance issued by the EEOC on May 28, 2021 can be accessed here.
Federal court upholds employer’s mandatory vaccine policy
Two weeks after the EEOC issued its updated guidance, a federal court in Texas became the first to rule on the permissibility of mandatory COVID-19 vaccination policies in Bridges v. Houston Methodist Hospital.
On April 1, 2021, Texas hospital system announced all employees must receive a COVID-19 vaccine as a condition of continued employment. The policy allowed employees to submitted documentation for exemption based on either a medical condition or sincerely held religious belief. More than 100 employees subsequently filed suit against the hospital claiming wrongful termination under Texas law and violations of various federal laws due to the COVID-19 vaccines’ emergency use authorization status.
On June 12, 2021, the Court dismissed the case in its entirety. In doing so, the Court concluded the hospital’s mandatory workplace vaccinations policies were lawful under Texas and federal law, and may be enforced as a condition of continued employment. Specifically, the Court held that firing an employee who is unwilling to comply with a mandatory COVID-19 vaccine policy does not constitute wrongful termination under state law because Texas only protects employees who are fired for refusing to commit an illegal act at the request of the employer. In its decision, the Court also pointed to the guidance issued by the EEOC on May 28, 2021, as well as the U.S. Supreme Court’s rulings upholding involuntary quarantines and mandatory vaccines.
The Court also rejected claims related to the vaccines’ emergency use authorization status. In asserting these claims, the employees relied upon a Food and Drug Administration (FDA) regulation which provides that, with respect to vaccines subject to emergency use authorization status, individuals must be informed of the option to accept or refuse administration of the product, of the consequences of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks. The Court rejected this argument by explaining federal law requires only the U.S. Secretary of Health and Human Services to ensure the potential benefits and risks of use and the option to accept or refuse administration of vaccines. The regulation does not, however, apply to or impose any such requirements on private employers, like the hospital.
The EEOC’s recent guidance and the Bridges decision indicate support for the use and permissibility of mandatory vaccination policies in the workplace. However, employers should be mindful of their obligations under federal, state, and local laws. This includes the obligation to engage in the interactive process with employees who have disabilities or sincerely held religious beliefs that prevent them from receiving the COVID-19 vaccine.
Do you have a legal question regarding COVID-19 vaccination policies in the workplace or an employment related matter? Give Parker Daniels Kibort a call at 612.355.4100.