Estimated reading time: 6 minutes
I know we’re still in the early stages of COVID-19 vaccine distribution and we don’t have all the answers yet. But that doesn’t mean organizations shouldn’t start thinking about their position and policies in terms of the vaccine and their workforce.
Recently, I listened to a webinar from our friends at Foley & Lardner LLP about some of the things that companies should start thinking about. So, I asked Mark Neuberger, who was one of the speakers on the webinar, if he would share his insights. Mark has shared his knowledge with us before. This article about “All Employee Medical Information Isn’t Protected by HIPAA” is an excellent read.
Please remember that Mark has a regular full-time job being a lawyer and he’s doing this to give back to the profession. His comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, you should address them directly with your friendly neighborhood labor attorney.
Mark, I know there have already been articles about this, but just to confirm, can employers require employees to take the COVID-19 vaccine as a condition of employment?
[Neuberger] As to private sector (non-governmental employees) the very general answer is YES.
Furthermore, there is a long history of the government mandating people to get vaccines such as before you send your child to school, people serving in the military, and certain classes of people wanting to immigrate to the United States. For years, many employers in high-risk workplaces (e.g., hospitals and nursing homes) have required their employees to obtain an annual flu vaccine.
But, before an employer decides it is going to make getting the COVID vaccine a condition of employment there are a number of legal and other considerations that must be considered.
Employers – particularly private sector employers – might have employees who need/want accommodations under the Americans with Disabilities Act (ADA) or for religious reasons. For employees who unable/unwilling to take the vaccine, are employers able to make adjustments to the employee’s position (i.e. work location, schedule, pay, etc.) to reduce the potential spread of the virus? Are they required to?
[Neuberger] Under Title VII of the Civil Rights Act and similar state and local anti-discrimination laws, an employer is required to make reasonable accommodations to qualified individuals with a disability and to individual’s religious beliefs and practices. If an employer were to mandate vaccines, they would have to go through an interactive process with the employee to determine if the resistance to the vaccine can be ‘reasonably’ accommodated.
One might say ‘What possible accommodation could be made to someone who might infect the workforce by not getting the vaccine?’ Here’s one idea: keep them working at home until herd immunity attaches to larger society which, if we are fortunate, could be sometime this summer. The Equal Employment Opportunity Commission (EEOC) has issued guidance which does say ‘if no reasonable accommodation is possible, then it would be lawful for the employer to exclude the employee from the workplace.’
If an employer requires an employee to take the vaccine (and the employee is fine with it too), is the employer obligated to cover the cost (if there are any)? If not, wouldn’t it be a best practice to do it anyway?
[Neuberger] Generally yes, the employer would have to, or should as best practice pay the costs, but this seems to be a moot point as the federal government has declared no one will have to pay for the vaccine.
Has there been any guidance to employers about vaccines and new hires? Meaning can an employer ask a candidate if they’ve received the vaccine and can they ask for proof.
[Neuberger] When people get the COVID-19 vaccine they are issued either a paper or electronic certificate of proof. The EEOC has said employers who ask a job candidate or employees ‘Did you get the vaccine?’ and if the answer is ‘yes’, then ‘Show me the proof.’, would be permissible inquiries.
The EEOC cautions that going beyond those questions by asking ‘Why not?’ is likely stepping into the prohibited zone of inquiry.
While they’re not employees, many organizations hire freelancers/contractors/consultants. Can an employer ask about vaccines and require proof as part of a contract?
[Neuberger] If they follow the guidance suggested above the answer is yes. Remember most, but not all anti-discrimination laws do not apply to independent contractors, only employees. Of course, that opens up an entirely new can of worms, namely are they really an independent contractor or has the employer misclassified them.
Hypothetically, if a contractor/candidate/employee misrepresents whether they’ve taken the vaccine, can an employer be held accountable/liable if an illness results?
[Neuberger] The answer to that question involves a very complicated legal analysis dependent in part on specific facts but the answer would likely come down to knowing if the employer acted negligently. If an employer adopts sound screening processes and a candidate or contractor lies and hides facts that could not otherwise reasonably be uncovered, that would not be negligence.
Last question. I’m sure there’s going to be a lot of guidance (and changing guidance) to employers over the next few months about vaccines. If there’s one thing that companies need to be focused on – what is it?
[Neuberger] I predict that in the next few months we may see new and different workplace laws. If COVID-19 continues to rage and if large segments of the population refuse to get the vaccine, I would not be surprised to see the feds or certain states and localities pass laws mandating the vaccine in certain circumstances.
As I mentioned earlier, there is a way to do it under the law and it’s been done before. Also, we will have a Democrat President, both houses of Congress controlled by the Democrats and if confirmed by the Senate, a Secretary of Labor (The nominee is Boston Mayor Martin J. Walsh.) who used to be a labor union official. So, my advice to the HR community is to fasten your seatbelts and tug on them twice to make sure they are tight because we are in for some turbulence.
A huge thank you to Mark for sharing the latest with us. Don’t forget that Foley & Lardner has a Coronavirus Resource Center to provide us with current information. And you might want to take a listen to their latest webinar focused on the labor and employment issues coming in 2021.
Mark is absolutely right when he says there’s a lot going on and HR pros need to get ready. We’re still dealing with COVID-19 and we have a new administration. Staying current with compliance will be valuable to our organizations and our employees.
P.S. Here are a couple of additional resources you might find helpful.
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (from the U.S. EEOC website, dated December 16, 2020)
EEOC Addresses COVID Vaccine Guidance and Potential Discrimination Issues (from the Foley & Lardner blog, dated December 16, 2020)20