A few words about vaccines

Be prepared for objections

People have long raised objections to vaccines since their first use in the late 18th and early 19th centuries. Today, the Centers for Disease Control (CDC) lists 26 diseases against which vaccines provide immunity. Indeed, the herd immunity that vaccinations help to create has eradicated or nearly eradicated diseases such as diphtheria, pertussis (whooping cough), and polio. In less controversial circumstances than the COVID pandemic, the vast majority of Americans approve of vaccinations. For example, according to the CDC, more than 91% of Americans have received vaccinations for polio and measles, mumps, and rubella (MMR). On the other end of the spectrum, though, about 50% of Americans get the seasonal flu vaccine each year.

Surveys show that more than 30% of people in the U.S. are reluctant to receive the COVID-19 vaccine. The COVID-19 vaccine has spurred many, varying objections. For this author, the objections fall into four general categories:

• Political. Some oppose the COVID-19 vaccine as part of their distrust of federal, state and local governmental authorities, or the scientific community, or the financial motives of pharmaceutical companies. Within this broad objection, some view the current vaccination efforts as an unreasonable form of social control. Some even maintain, despite nearly 600,000 deaths in the U.S. as of this writing, that COVID is not a “serious” health risk.
• Racial. Black adults have been reluctant to get vaccinated often citing past systemic racism in medical testing and treatment. The Black community can point to the Tuskegee Syphilis Study, a study commenced in 1932, which enlisted impoverished Black men with syphilis, on the promise of treatment, but were left untreated for 40 years; and the case of Henrietta Lacks, a Black woman whose cells were taken in 1951, without her consent or any compensation, to culture the “HeLa” cell line, which continues to produce cells indefinitely for invaluable medical research.
• Medical/Safety. Employers should be aware that the most common objections to the COVID-19 vaccine focus on medical or safety concerns. For example, the vaccine was developed quickly, is presently under Emergency Use Authorization, and is not FDA-approved; therefore, some fear medical side effects, particularly allergic reactions or negative influence on other underlying medical conditions. Others claim the emerging, and more virulent, variants of the virus will make the current vaccine ineffective. Some pose strong objection to the messenger RNA (mRNA) technology used to develop some of the vaccines. mRNA is a portion of the genetic code that teaches cells how to make a protein that triggers an immune response. Scientists state that mRNA technology is not new, has been in development for more than 30 years, and mRNA of the vaccine never enters the nucleus of a human’s cells and does not interact with an individual’s DNA. However, the COVID-19 vaccine is mRNA’s first licensed use in humans and has prompted claims that it is not safe.
• Religious. People have raised religious objections to vaccination itself; for example, Christian Scientists who believe in healing through prayer view vaccines as unnecessary. Others have objected to the use of human fetal cell lines in production or testing of the vaccine.

Can employers mandate the COVID-19 vaccine?

On December 16, 2020, the EEOC affirmed that federal civil rights laws do not prevent employers from requiring the COVID-19 vaccine. However, the EEOC emphasized that employers must consider employees’ objections based on disability-related and religious reasons.

• Employers must address an employee’s inability to be vaccinated due to a disability under the Americans with Disabilities Act (ADA). If a safety-based qualification standard—such as vaccination requirement—screens out an individual with a disability, an employer must show that an unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Therefore, an employer must conduct an individualized, interactive assessment to determine whether a person poses a direct threat to the workplace, including a determination that an unvaccinated individual will expose others to the virus at the worksite. Even if an unvaccinated employee presents a direct threat, an employer cannot exclude the employee unless there is no reasonable accommodation that would eliminate or reduce this risk posed by the unvaccinated employee. If no reasonable accommodation reduces the risk of a direct threat or otherwise imposes an undue hardship, then an employer must consider alternative work arrangements such as telework or a leave of absence, if available, before terminating an employee.
• Employers must address the refusal to be vaccinated for religious reasons. Once an employer is on notice that an employee’s sincerely-held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless the accommodation would pose an undue hardship under Title VII of the Civil Rights Act. Unlike the ADA, a lower “de minimis” standard is used to determine whether an undue hardship exists in cases of religious accommodation.

OSHA has not yet provided specific guidance on mandating the COVID-19 vaccine, but its guidance in the midst of the H1N1 pandemic remains relevant today. Employers must address an employee’s refusal to be vaccinated due to a safety risk. An employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the OSH Act regarding whistleblower rights.

Further, while the National Labor Relations Board has also not issued specific guidance, if a workplace has unionized employees, a vaccine requirement could be a mandatory subject of bargaining with a union. Even in a nonunion setting, private employers are subject to the National Labor Relations Act and the right of employees to engage in “concerted activities” for the purpose of “mutual aid and protection.” Therefore, employees who protest a mandatory vaccine, or demand vaccinations for their safety, may be protected.

Finally, employers are cautioned that they must follow any state laws that may be more restrictive and limit mandatory vaccinations. A number of states have already passed, or are considering, laws to limit mandatory vaccination of the COVID-19 vaccine.

What about employees who raise political or personal objections to the vaccine?

The protections for persons with a disability or who raise religious objections do not extend to nonreligious beliefs and, therefore, would not exempt an employee who objects to the COVID-19 vaccination for purely political beliefs or other personal reasons. Therefore, employees with non-religious, personal or philosophical objections to the vaccine may be in for a difficult conversation with their employer about whether their objections are reasonable in light of the employer’s decision to return to work as safely as possible for the majority of its employees. Of course, employers must consider any state law that may protect employees who raise non-religious objections.

Should employers mandate the COVID-19 vaccine?

At present, there are a number of good reasons why employers are not requiring the vaccine. First, there is no federal or state mandate on which employers can rely and which would make vaccination a compliance imperative. Similarly, the FDA has not yet approved the vaccine; this approval would supply a federally-sanctioned determination that the vaccine is effective. Therefore, given already heightened vaccine hesitancy, an employer could face employee morale problems by demanding vaccination under the current circumstances.

Moreover, if an employer mandates the vaccine, and employees are injured due to the vaccine, employers could face potential liability for workers’ compensation, negligence lawsuits, and required reporting of such injuries to OSHA. Of course, if an employer does not mandate the vaccine, it may face claims that it did not exercise its general duty to keep work safe.

As a practical matter, an employer must also ask itself if it is prepared to fire 10%, 20%, or 30% of its employees who refuse to be vaccinated and then defend against those employees’ lawsuits? Similarly, the vaccine supply is limited in some locations; therefore, employers are forced to take a wait-and-see approach to whether employees will be vaccinated as the vaccine becomes more widely available.

Finally, there are alternatives to mandating the vaccine to protect employees and the public. Employers can, and should, continue to rely on current recommended safety (e.g., masks, sanitation, and social distancing), COVID screening, and COVID testing protocols. Employers can rely on their fitness-for-duty programs to determine whether employees with health conditions are capable of returning to work and assessing any potential accommodations. In its recent guidance, the EEOC stated that employers can ask employees whether they’ve been vaccinated and require proof of vaccination. While an employer cannot make more intrusive medical inquiries, such as asking about medical side effects or underlying health conditions, an employer can assess the voluntary participation rate of the vaccine. Such information must be maintained in confidence.

If an employer is seriously considering mandating the vaccine at this time, the safest course would be to tie the vaccine requirement to specific job duties, such as work in proximity, access to or care of vulnerable or high-risk persons, health care workers, first responders, customer-service positions, rather than all jobs, and be prepared to address the inevitable objections.

Can employers offer incentives to encourage vaccination?

Employers can likely offer small incentives for getting the COVID-19 vaccine, but there are evolving legal uncertainties an employer must navigate.

Under the ADA, employers may offer voluntary “wellness” programs to their employees. Employers can offer incentives to participate in wellness programs, but the use of incentives is limited to ensure participation is, in fact, voluntary.

Further, while getting a vaccine is not a medical examination, the required medical questions preceding a vaccination (at least if made by an employer or third party under contract with an employer) could be viewed as a disability-related inquiry subjecting employers to the ADA’s non-discrimination rules. Similarly, since an employer may have a duty to accommodate an employee who is incapable of getting the vaccine and, in some cases, can provide alternatives to vaccination, e.g., remote work, wearing a mask, getting weekly COVID tests, and social distancing, an employer must allow a person with a disability-related (or religious) objection to earn the same incentive offered for getting the vaccine in order to avoid discrimination claims.

The EEOC has not yet provided guidance regarding the appropriate level of incentive to remain a “voluntary” program under ADA guidelines. Therefore, to be prudent, employers should avoid incentives until guidance is issued or consider only low-cost incentives such as a gift card or paid time off for vaccination or recovery, for employees to get the COVID-19 vaccine.

What should an employer do right now?

Even though an employer may be able to require the COVID-19 vaccine, particularly after FDA approval, employers should weigh the potential legal challenges and employee relations issues that may result. Consider the following advice:

• Take the pulse of your organization to determine vaccine acceptance and participation rates. If most of your employees understand the importance of obtaining the vaccine and the benefit that inures to the employer’s operations, then the scope of the problem is significantly narrowed. Employers may encourage vaccination but, more importantly, should educate the entire workforce about the public health reasons and benefits to one’s career and the business for being vaccinated. Finally, leaders should lead by example and model the expectations they have of their employees.
• Consider leaving out the politics. Perhaps it is the age in which we live, but the pandemic, and responses by all levels of government, have elicited an enormous amount of political division affecting individual decision making. From an employer’s perspective, however, its response should be driven by (1) determining the necessary and reasonable steps for maintaining its viability while ensuring the safety of employees, customers and visitors, and (2) an organization’s appropriate measure of corporate responsibility determined by its leadership and mission.
• Manage your people. Employers must be prepared to hear, consider and respond to employee concerns about efficacy, side effects, and general fears about the vaccine. At the same time, unvaccinated employees must consider the consequences of being a direct threat to other employees or customers, particularly in retail, manufacturing, transportation, hospitality, and food service, where remote work may not be, or no longer is, possible. This author fears a rift will develop, or widen, between the “vaxxed” and the “unvaxxed” at work. Many see vaccination as a reasonable sacrifice to re-establish some freedom and normalcy in their work and private lives, including getting on an airplane or enjoying a ball game or concert and, unfortunately, may express some resentment toward coworkers who do not see it the same way. Perhaps more troublesome, an entire organization might intentionally, or unintentionally, create different career opportunities, such as offering business travel, in-person client meetings, or other perceived rewards for employees who are vaxxed, than those who are unvaxxed. This is a recipe for workplace conflict and potential discrimination claims brought by employees on the basis of a disability or religion.
• Train supervisors and managers to recognize and address safety objections under OSHA and requests for accommodation on the basis of disability or religion. Be prepared to contact HR for assistance. The ADA says employers can require that employees not pose a direct threat to the health or safety of others in the workplace. The federal government has already determined that the novel coronavirus presents a direct threat. However, if getting vaccinated screens out someone with a disability, the employer must show that an unvaccinated person would pose a significant risk of substantial harm to that person or others that can’t be reduced by reasonable accommodation. Employers can still require employees exempt from vaccination requirements to follow enhanced safety protocols or work remotely, if feasible. Further, employers must provide a reasonable accommodation of religious beliefs and practices unless it would impose an undue hardship on the employer. Finally, leaders must be aware of their employees’ right to engage in protected concerted activity under the National Labor Relations Act, such as protesting an employer’s COVID-19 vaccine program (or the failure to provide a program) in order to avoid unfair labor practices.
• Employers should develop a policy before mandating that employees receive vaccines to return to work. Legal assistance may be necessary. A policy should (1) encourage employees to get vaccinated, as promptly as possible, under a state’s or local protocols; (2) determine whom, and under what circumstances—vaccinated or unvaccinated—employees will be allowed to work in the office or attend organization-sponsored events, and whether proof of vaccination will be required; (3) address those unable to be vaccinated due to a disability, advice of a medical provider, or religious beliefs, and advise them to contact Human Resources to explore reasonable accommodations, including work from home, if available, wearing PPE, continuing to follow CDC safety protocols, social distancing, etc.; and (4) whether an employer offers incentives to receive the vaccine.
• Think about ADA/HIPAA compliance. An employer can’t utilize protected health information (PHI), such as a record of vaccinations obtained by employees from an employer-sponsored health plan, without employee authorization. Potentially, under the ADA, vaccination information must be treated as a confidential employment record. However, vaccine data acquired from other sources is not PHI in the employer’s hands if it is not related to an employer-sponsored health plan.
• Consider incentives. While waiting for more guidance, employers should consider offering incentives, such as paying employees for time off to be vaccinated, or transport to a vaccination off-site, or time offto recover from side effects of the vaccine. Employers can require proof of vaccine to support paid time off. If you mandate the vaccine, it is very likely the time to get vaccinated is compensable. Under the American Rescue Plan Act of 2021, employers may now recover payroll tax credits, through September 30, 2021, for permitting up to ten paid days off related to the vaccine and its health effects.
• Be flexible. Finally, COVID-19 and possible future pandemics are not going away! And the current pandemic isn’t over yet. Employers should be flexible, and responsive to changing public health requirements, and continue to maintain CDC-recommended safety protocols, even if employees are vaccinated. On May 13, 2021, the CDC announced that Americans who have been fully vaccinated against COVID-19 no longer need to wear a face covering or practice physical distancing in any setting. Employees who have not been fully vaccinated, or whose vaccination status is uncertain, may be required to continue to wear face masks and maintain social distancing. States and localities may have their own rules. Further, determining proof of vaccination, particularly from customers, clients and vendors, may present logistical difficulties for employers and may be limited by state laws.