What Lawyers Need to Know About Vaccine Mandates
9.13.2021
There is no question that an employer can mandate vaccinations, but the devil is in the details and there are pitfalls to avoid.
Last week, President Biden issued a sweeping vaccine mandate for all federal workers, as well as a requirement for companies with more than 100 employees to require vaccinations or weekly testing.
Knowing when and when not to request additional information is essential for organizations to protect themselves. With vaccine mandates also come religious and medical exemptions that can arouse an employer’s suspicions, but it’s best for employers to avoid playing doctor.
Michael Passarella detailed the steps companies should take for compliance on the CLE webinar, “Mandating Your Employees Get Vaccinated? What New York Lawyers Need To Know.”
“It’s really the reasonable accommodations and also general policies and practices surrounding vaccines that you want to make sure are compliant, consistent,” said Passarella.
EEOC guidance
From the outset of pandemic, the Equal Employment Opportunity Commission (EEOC) has provided guidance on COVID-related employment issues. The EEOC previously created pandemic guidance during the h1N1 outbreak in 2009. The EEOC clearly stated that employers may require testing of employees and may inquire into an employee’s vaccination status and seek proof of vaccination.
Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the Americans with Disabilities Act and other EEO considerations.
The EEOC has clearly stated that number one, employers may require testing of employees and may inquire into an employee’s vaccination status and proof of vaccination.
The EEOC perspective on vaccination as a condition of employment is “pretty straightforward” that the federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID.
The New York City Commission on Human Rights has specifically adopted EEOC’s guidance on vaccinations and many COVID-related issues, subject to NYCHRL’s definitions and reasonable accommodation standards.
The Department of Justice has similarly stated that a vaccination requirement as a condition of employment, even if such vaccine was approved under Emergency Use Authorization, is permissible. The Pfizer-BioNTech COVID-19 Vaccine received full approval in late August.
Unionized workforce
In most cases, private employers cannot unilaterally implement a vaccination requirement on unionized employees as such a requirement would be a mandatory subject of bargaining with the union. This also applies to mask mandates and weekly testing.
“It would be a process if the union did not want to play ball with respect to vaccine mandates,” said Passarella. “That would also apply to a mask mandate.”
He explained that in most healthcare settings weekly testing “would be an imposition on employees.”
Vaccine mandates are tricky because they might require time off to get the vaccine or to recover if there were issues. Some of these are covered as time-off requirements under New York State law.
“I think it’s arguable whether sickness, because of the vaccine, would fall under sort of this enhanced sick leave that New York State and New York City have come up with for COVID-related issues,” said Passarella. “But you would have to bargain with the union over that.”
Union reaction to meaningfully consider the issue has varied. Passarella has observed a shift on vaccine mandates from initial significant pushback from the unions to a more open-minded approach.
“Obviously, unions represent their members and if there is significant member pushback on these issues, then the Union has an obligation to its members not to ‘cave on this issue’,” said Passarella.
Reasonable accommodations
Passarella has received the most questions from clients seeking guidance on reasonable accommodations. “This is where the rubber meets the road,” he said.
Federal, state and local law each require that an employer imposing a vaccination requirement as a term of employment is obligated to reasonably accommodate an employee who is unable to receive the vaccine because of a disability or a sincerely-held religious belief.
While employers can request and should require medical documentation, they should not play doctor, advised Passarella. He cautioned that documentation that an individual does not need the vaccine is not the same as documentation that a medical condition prevents the individual from receiving the vaccine.
Although vaccine availability has become more widespread, employers should give employees a few weeks to a month to get their first shot.
Passarella has seen examples where employees who have COVID recently claim they don’t need the vaccine due to natural immunity.
Can an employee be fired for refusing to comply with a vaccine mandate? Yes. Could a vaccine employee argue that us an employer did not impose a mandate, the employer had failed to safeguard their health? “I think that would be an uphill battle,” said Passarella.
However, Passarella noted that just because an employer has to engage in the reasonable accommodation process that does not mean that it cannot take action against an employee for not getting a vaccine.
“This has been sort of long standing guidance that employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” said Passarella.
He added that employers can request more information from their employee, including statement documents from religious leaders. He has seen some statements from individuals who are not in the same state, as the person requesting the accommodation.
“It doesn’t have to be necessarily even an organized religion; it has to do with somebody’s sincerely held religious or theistic beliefs.”
Employers are going to act at their peril, I think, if they question that too severely, he cautioned.
