Can Private Sector Employers Require Employees To Be Vaccinated for COVID-19?

By Jennifer M. Schwartzott and Theresa E. Rusnak

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As the rollout of COVID-19 vaccines continues both in New York and across the country, the question of whether private sector employers can require their employees to be vaccinated has become increasingly pressing. To answer this question, employers must consider pertinent employment laws, including Title VII of the Civil Rights Act, the Americans with Disabilities and Act (ADA), along with safety considerations raised by the Occupational Health and Safety Administration (OSHA) and Workers’ Compensation Commission.

Judicial Opinions Governing COVID-19 Vaccinations Are Scant

As with most COVID-19-related legal predicaments, there are very few guiding judicial opinions to rely upon because we are still in the midst of the pandemic, and judges have not yet had an opportunity to weigh in. As a result, we are left to consider judicial opinions in cases that relate to other communicable diseases (e.g., influenza) not specific to COVID-19. Of that body of cases, most opinions discuss health care employers and vaccination mandates on their health care provider employees. For example, in Robinson v. Children’s Hospital of Boston, an employee working in the Emergency Department challenged the hospital’s mandate requiring her to be vaccinated for influenza, claiming the vaccine violated her religious beliefs. The United States District Court for Massachusetts upheld the hospital’s vaccination requirement.[1] The court found it was an undue hardship to allow the employee to remain unvaccinated as a form of religious accommodation.[2]

There are some decisions outside of the health care employer context as well, and those decisions suggest a willingness to allow mandatory employer vaccinations in some circumstances. By way of example, in Kiel, et al. v. The Regents of the University of California, et al., a California superior court denied plaintiffs’ request for a preliminary injunction to enjoin the enforcement of a policy mandating students, faculty and staff receive a flu vaccine as a condition to access university property during the 2020–2021 flu season.[3] Although not a dispositive decision in favor of mandatory vaccinations, the court’s action at least indicates requiring vaccines is not a closed issue in the non-health care employer context.

As vaccines become more readily available, it is likely that additional legal challenges and subsequent court decisions will be forthcoming in the State of New York and throughout the nation in 2021.

EEOC Guidance Suggests Mandatory Vaccinations Are Permitted in Certain Circumstances

In anticipation of the COVID-19 vaccine distribution, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance relating to vaccination requirements in the workplace in the context of Title VII and the ADA.[4] The EEOC guidance does not expressly state whether employers are permitted to require vaccines, but a fair interpretation of the guidance suggests employers can do so provided accommodations are made for employees with religious and medical needs.

Employers May Need To Engage in a “Direct Threat” Analysis

In the guidance, the EEOC clarifies the administration of the COVID-19 vaccine itself is not a “medical examination” and, therefore, does not require an employer to inquire about an individual employee’s health status (which would otherwise be prohibited).[5] But, the prescreening questions the Centers for Disease Control and Prevention recommends be asked before administering the vaccine to an individual to ensure there is no medical reason the individual should not receive the vaccination are, however, “medical examinations”[6] because they elicit information concerning an employee’s medical condition.[7]

 As such, according to the EEOC, for an employer to ask the prescreening questions that are necessary to administer the vaccine, the employer must show the questions are “job-related and consistent with business necessity.”[8]

To meet this standard, the EEOC explains that an employer must have a reasonable belief, based on objective evidence, and an employee who does not answer the questions (and will consequently be disqualified from being vaccinated) will pose a “direct threat” to the health or safety of her- or himself or other employees in the workplace.[9] This is commonly referred to as a “direct threat” analysis, and it mandates that an employer assess several factors, including the duration of the risk; the nature and severity of the potential harm; the likelihood that the harm will occur; and the imminence of the potential harm.[10] In the context of COVID, if an employer determines that an unvaccinated employee poses a “direct threat,” the employer can require the employee to receive the vaccine. Importantly, though, an employee cannot be excluded from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”[11]

Notably, employers can avoid engaging in the “direct threat” analysis and still require employees to be vaccinated against COVID-19 by mandating employees receive the vaccine from a third party not affiliated with the employer, such as a pharmacy or health care provider.[12] The reason for this is because, in that scenario, the employer would not gain access to employees’ medical information (revealed in response to the prescreening questions). Employers could also consider making the vaccine voluntary for employees, such that if an employee refuses to answer the prescreening questions (and thus not receive the vaccine), there are no adverse consequences to the employee’s employment.[13]

Employers Will Need To Contemplate Medical and Religious Objections

The EEOC guidance also addresses how employers should respond to employees who refuse to participate in a mandatory vaccination program due to medical or religious reasons. Specifically, employers have an obligation to reasonably accommodate employees with medical or religious objections to the extent that such accommodations do not impose undue hardships.[14] Such accommodations could include altering the employee’s schedule or work location to minimize contact with others or requiring an employee to wear additional protective equipment when working. If there are no accommodations that can be granted without imposing an undue hardship – meaning having more than a de minimis cost or burden on the employer – then the employer may lawfully exclude the employee from the workplace.[15] Additional accommodations, however, may still be warranted when an affected employee can do his or her work duties remotely (which would also be subject to the undue hardship analysis).[16]

The EEOC Considered the FDA’s Emergency Use Authorization Process

COVID-19 vaccines were federally approved through the Food and Drug Administration’s Emergency Use Authorization (EUA) process.[17] Consequently, the Food, Drug and Cosmetic Act, by which the EUA is authorized, dictates individuals who receive a EUA-approved vaccination must be informed that they have the option to accept or refuse administration of the vaccine and of the consequences, if any, of refusing the vaccine.[18]

This statutory requirement adds a complicating wrinkle to the question of whether employers can mandate vaccinations, which the EEOC guidance acknowledges. While more guidance from both the FDA and the EEOC is expected, the EEOC’s reference to the EUA process in its guidance can be taken to mean it considered the FDA’s position and does not consider it determinative as to whether employers can mandate vaccinations. In other words, an individual’s right to refuse the vaccine does not necessarily prohibit employers from requiring employees who are present in the workplace be vaccinated.

Safety Considerations Required by OSHA and Governed by Workers’ Compensation Should Be Contemplated

Under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide employees with a “safe workplace.” Specifically, the OSHA Act requires employers to create a place of employment which is “free from recognized hazards that are causing or likely to cause death or serious physical harm.”[19] Given this, a claim could surely be made that the failure to require vaccinations in the workplace violates the General Duty Clause. In response, employers can defend against this by contending its use of distancing, barriers and protective equipment were sufficient to meet its obligations under the General Duty Clause without requiring vaccinations, but OSHA does not prohibit employers from mandating vaccinations. In 2009, the agency published an interpretation letter stating nothing in the OSHA Act prohibited employers from requiring mandatory influenza vaccinations,[20] but noted the refusal to receive a vaccine due to medical reasons that have the potential to cause serious illness or death would be protected by the Act.[21]

Additionally, adverse reactions to required vaccinations may lead to workers’ compensation claims by employees. In Employer: NYC HHC, the New York State Workers’ Compensation Board upheld benefits for a mandatory influenza vaccination that caused an adverse reaction.[22] Furthermore, workers’ compensation benefits may apply even if an employee receives a vaccine voluntarily, at least in the health care setting. In Employer: Mohawk Valley Child & Youth, the board found that an employee who suffered an adverse reaction to an optional hepatitis B vaccine was entitled to benefits because the vaccination was directly tied to the “quality of danger peculiar to the work and incidental to the business” of the health care employer and was not a “generalized health concerns outside of the employer’s workplace.”[23] A COVID-19 vaccine, in a health care setting, may well fit these parameters.

Until the judicial opinions begin to “roll in,” employers who wish to mandate COVID-19 vaccinations should undertake an analysis of the issues discussed herein and consider developing a vaccination policy outlining the employer’s reasons for compelling the vaccine; the details about how and who will administer it; and how religious or medical accommodations will be addressed, at a minimum. No question, mandatory vaccinations will be a topic of interest for employers and employees for the foreseeable future and should be considered carefully.

Jennifer Schwartzott is a member with Bond, Schoeneck & King in the Rochester office. She has extensive litigation experience, and practices in state, federal and administrative courts. She is skilled in all aspects of discovery, depositions, evidentiary hearings, motion practice, trial strategy, and has tried many cases to verdict. Schwartzott represents hospitals, physicians, nurses, physician’s assistants and other medical providers, as well as school districts.

Theresa Rusnak is an associate with Bond, Schoeneck & King in the Rochester office. She is a labor and employment adviser representing employers of various sizes across New York State. Rusnak has represented employers in federal and state court lawsuits, as well as before administrative agencies such as the Division of Human Rights, the Equal Employment Opportunity Commission, the Occupational Health and Safety Administration and the National Labor Relations Board. In addition to her representation of clients in lawsuits and administrative complaints, she also enjoys working with employers on preventative legal compliance.


[1]. 2016 WL 1337255 (D. Mass. 2016).

[2]. Id. at *9.

[3]. 2020 WL 7873525 (Cal. Super. 2020).

[4]. What You Should Know About COVID-19 and that ADA, the Rehabilitation Act, and Other EEO Laws, Equal Employment Opportunity Commission, (December 16, 2020); https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[5]. Id. at K.1.

[6]. Id.

[7]. Id.

[8]. Id.

[9]. Id.

[10]. See id. at K.5.

[11]. Id.

[12]. See id at. K.2.

[13]. See id.

[14]. Id. at K.6.

[15]. See id.

[16]. Id. at K.5.

[17]. Id at. K.4.

[18]. See Emergency Use Authorization for Vaccines Explained, Food & Drug Administration (November 11, 2020); https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained.

[19]. COVID-19: Regulations, Occupational Safety and Health Administration; https://www.osha.gov/coronavirus/standards.

[20]. Standard Interpretations, Occupational Safety and Health Administration (November 9. 2009); https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09.

[21]. See id.

[22]. 2012 WL 106430, (N.Y. Work. Comp. Bd. Jan. 9, 2012).

[23]. 2001 WL 1140311, at *1 (N.Y. Work. Comp. Bd. June 7, 2001).

 

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