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Employment Law Notebook

To Vaccinate Or Not To Vaccinate? Employers Should Tread Carefully Before Requiring Employees To Get A COVID-19 Vaccination

To Vaccinate Or Not To Vaccinate?   Employers Should Tread Carefully Before Requiring Employees To Get A COVID-19 Vaccination

With the first doses of COVID-19 vaccines being administered in the United States, many employers, who have been scrambling for months to implement numerous health and safety measures to prevent the spread of COVID-19 at work, have been wondering if they can and should require employees to receive the vaccine as a condition of employment.  Here we tackle the key issues to consider. Given the various legal and practical issues at play, employers should consult employment counsel before implementing such a requirement.

Is an employer required to mandate vaccines for employees to provide a safe workplace?

At the time this article was written, the Occupational Safety and Health Administration, the state of New Jersey and the Centers for Disease Control do not impose such a requirement on employers.

Can an employer require an employee to get a COVID 19 vaccine?

Yes. The Equal Employment Opportunity Commission recently issued guidance on December 16, 2020 indicating that employers can do so but how they do so and whether or not employers properly handle objections from employees who do not want to get the vaccine could affect whether or not employers will face legal problems for doing so.  Here are several key issues:

Employers who administer the vaccine itself or hire a third party to do it have a high legal standard to meet.

Employers who don’t administer the vaccine to employees but merely require them to provide proof of vaccination from another source have less legal hoops to jump through.

Given the staged rollout of the vaccine, employees will not be eligible to get it at the same time, which makes workplace decisions regarding those vaccinated or not vaccinated challenging.

Under state and federal discrimination laws, employers who require employees to get the vaccine must make exceptions for employees whose disability or sincerely held religious belief prevents them from getting a vaccine

Employers should act cautiously if employees object to taking the vaccine because of their race, national origin or a safety concern.

Who gives the vaccine to employees matters:

Because the Centers for Disease Control (“CDC’) recommends pre-screening medical questions be asked before an individual is given a vaccine, an employer’s requirement to get a vaccine becomes a disability inquiry that can only be made if the inquiry is job-related or consistent with business necessity. 

However, that standard does not apply if employers allow employees to get a vaccine from a health care provider or pharmacy that does not have a contract with the employer.  If  the employer merely requires the employee to provide proof they got the vaccine no medical information of the employee would be disclosed and the employer does not need to satisfy the job-related, business necessity standard. For this reason, this is the easiest way for employers to implement a mandatory vaccine requirement.  Employee vaccination documentation should be stored in a separate medical file for each employee.

If on the other hand, an employer only encourages employees to get the vaccine and provides it to them or hires a third party to do so, employee must have the choice of whether to answer the pre-screening questions. If the employee refuses to answer the questions and the employer declines to give that employee the vaccine, the discrimination laws prevent the employer from taking any adverse action against the employee for refusing to answer the questions.

When considering whether to require or merely encourage employees to get a COVID-19 vaccine, employers should factor in the staged rollout of the vaccine in their state and watch for new laws at the state and federal level.

Each state has its own rollout parameters that dictates what types of individuals are eligible to get the vaccine before others.  Depending on the job an individual holds, their age, whether or not they have pre-existing conditions, and the type of community they live in, they could be eligible to receive the vaccine in the early, middle or late stage of their state’s vaccine rollout program. This makes mandating a vaccine impossible for most employers until the complete general population is eligible to receive it. Before implementing a vaccine requirement, employers should familiarize themselves with their state’s rollout schedule.

Click here for information on New Jersey’s staged vaccine rollout.

Employers should also watch for new state and federal laws that might affect their ability to require employee to be vaccinated.

How should an employer respond if an employee indicates he or she can’t get the vaccine due to a medical condition, pregnancy or breastfeeding?

Vaccine manufacturers Pfizer-Biontech and Moderna advise that individuals with a history of being allergic to vaccines, with blood disorders or on blood thinners, or who are pregnant, breastfeeding or immunocompromised should consult their physician before taking a COVID-19 vaccine or discuss it with the vaccine provider. If an employee declines to get vaccinated due to medical reasons under the ADA and the New Jersey Law Against Discrimination (“NJLAD”), the employer can ask the employee to verify that reason by requiring the employee to provide it with a certification from a doctor that says that they have a condition and that the individual should not get the vaccine.

After receiving such a certification, the employer should discuss with the employee how it might provide the employee with a reasonable accommodation (some kind of adjustment at work) that will enable them to keep working despite the fact that the employee will not be vaccinated. Some examples could be allowing an employee to work from home and not in the physical workspace, permitting them to work off hours at the work site or in a part of the workspace that is further away from other employees, building additional partitions around the area where an employee works, or providing them with leave.

Employers, however, do not need to offer accommodations to disabled employees if doing so would impose an undue burden on them. To prove that here, an employer would need to establish 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”.  29 C.F.R. §1630.2(r). EEOC indicates that this must be assessed on a case by case basis that results in the employer determining that the unvaccinated employee will expose others to the virus at work.

The EEOC warns that an employer cannot bar the employee from the workplace or terminate them unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat. If that is the case, EEOC Guidance states that the employer can exclude the employee from the workplace but before terminating the employee, the employer should first consider any other rights that would apply under EEO or other state or federal laws.

Additionally, given the staged rollout of the vaccine in each state, there could be weekly or monthly spans in time between the time in which some parts of the workforce are eligible and ineligible to get the vaccine.  Accordingly making workplace decisions regarding those who are vaccinated or not vaccinated before all are eligible can be hard to justify.

How should employers respond if an employee indicates he or she can’t get the vaccine for religious reasons?

Title VII of the Civil Rights Act of 1964 requires employers to provide reasonable accommodations to employees whose sincerely held religious belief prevents them from receiving a vaccine. EEOC Guidance states that because the definition of religion is broad, the employer should normally assume the employee’s request is based on a sincerely held religious belief. However, if an employer has a legitimate doubt that the employee has such a sincerely held religious belief or whether the religion’s tenants include avoiding vaccines, it is permitted to make a limited inquiry into the issue.

Assuming the request is legitimate, the employer must provide such an employee with a reasonable accommodation unless doing so would impose more than a minimal cost or burden on the employer.   EEOC Guidance states that if there is no accommodation possible, the employer can exclude the employee from the workplace but should first consider any other rights that would apply under EEO or other state or federal laws before terminating the employee.

Additionally, given the staged rollout of the vaccine in each state, there could be weekly or monthly spans in time between the time in which some parts of the workforce are eligible and ineligible to get the vaccine.  Accordingly making workplace decisions regarding those who are vaccinated or not vaccinated before all are eligible can be hard to justify.

How should an employee respond if an employee objects to getting a vaccine due to their race?

If an employee is a person of color and says that due to historical events, they don’t trust the vaccine, employers who don’t accommodate such requests could potentially be sued for a disparate impact discrimination claim.  Such claims assert that an employer’s employment requirement or decision has a disproportional impact on individuals in a protected class (in this instance race or national origin).

How should an employee respond if an employee objects to getting a vaccine because they are unsure if it is safe or for other reasons not mentioned above?

The vaccines currently being administered are governed by the Food & Drug Administration’s Emergency Use Authorization which requires individuals to have a choice whether or not they get the vaccine.  If an employer takes adverse action against such an employee rather than offering them an accommodation, the employee could bring a retaliation claim under New Jersey’s whistleblower law, the Conscientious Employee Protection Act, or the Occupational Safety and Health Act.  

Do employers have to pay employees for the time they spend getting vaccinated?

If employers require employees to get vaccinated, they must pay non-exempt hourly employees for the time it takes them to get vaccine. If employers only encourage employees to get the vaccine, they do not need to pay them for their time getting one.

Can employers tell employees when to take the vaccine?

Yes. The employer can instruct employees who are eligible to receive a vaccine to take it on specific days or times in anticipation of possible side effects employees may experience and the need to avoid having too many employees taking time off at the same time.