COVID-19 Vaccine - Employer and Higher Education Considerations with Respect to a Mandate or Vaccine Program
As of December 13, 2020, Georgia was shipped roughly 84,000 doses of the COVID-19 vaccine and has 470,000 Healthcare workers and nursing home residents in the State. In Georgia, waves of vaccinations are to be distributed as follows: 1) Healthcare Workers, Nursing home residents; 2) Essential workers – Teachers and First Responders; and 3) Pre-existing conditions, 65+. It is anticipated that it might take several months to get through wave one. This is a similar scenario in most states.
While the State of Georgia and the Nation are working through the first wave, employers are considering how to offer a vaccine program (similar to any flu vaccine program) and whether or not they can and want to mandate employees to get the vaccine. Further, universities and schools of higher education are considering whether to mandate the vaccine for students for the 2021/2022 school year. If an employer or institution decides to mandate the COVID-19 vaccine, what are the considerations of such a mandate?
Emergency Use Act
The Pfizer COVID-19 vaccine has been approved for emergency use through the Emergency Use Act (EUA), which means the vaccine is still considered experimental. Pfizer announced that it will apply for full approval in April 2021 – but the timeline for when the vaccine will be fully approved by the Food and Drug Administration (FDA) is unclear. The fact that any vaccine is only approved for emergency use leaves a grey area for any mandate.
The EUA states there must be “appropriate conditions” that allow individuals who receive the vaccine to refuse the vaccine. The EUA also suggests that the Secretary of Health and Human Services (HHS) has the ability to allow consequences for refusing the vaccine. In short, the wording of the EUA is unclear but does not specify a ban on mandates of the vaccine by employers and/or institutions.
The Society for Healthcare Epidemiology of America (SHEA), which has broadly endorsed requiring approved vaccinations for healthcare workers, teachers and students, has included in its COVID-19 vaccination policy a recommendation that a COVID-19 vaccine should not be mandatory for healthcare workers while the vaccine has only been approved under the EUA, but that healthcare facilities can consider a mandate once the vaccine receives full approval from the FDA.
US Equal Employment Opportunity Commission
Considering the scope and severity of the COVID-19 pandemic, the US Equal Employment Opportunity Commission (EEOC) issued guidance for employers on December 16, 2020, in consideration of the offer and/or mandate of the COVID-19 vaccine. Regardless of whether employers offer or mandate the COVID-19 vaccine, the employer’s policy must adequately inform employees of the requirements to be imposed on them in clear and certain terms.
For employers who want to establish a program to offer the vaccine to employees or those that want to mandate the vaccine, prescreening questions must be “job-related” and consistent with business necessity. Prescreening questions must avoid questions that seek genetic information such as family medical history, and privacy of all information gathered must be maintained. Additionally, any vaccine policy of an employer must allow workers to seek an exception or accommodation on the basis of a disability or a sincerely held religious belief from any mandate. If no accommodation is available or the accommodation would be an undue hardship on the employer, the employer can bar the employee from the workplace if it can show the unvaccinated individual is a “direct threat.” That said, the failure to engage in an interactive process when workers have requested a possible exemption or an accommodation from a mandate due to a disability or for a sincerely held religious belief could lead to liability concerns in and of itself.
The updated guidance also provides the legal framework under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act for how employers who mandate the COVID-19 vaccine should handle situations in which a worker cannot receive the vaccine due to an underlying disability or because of religious beliefs. The guidance explains that employers must analyze whether a reasonable accommodation from taking the vaccine is available. If a reasonable accommodation from taking the vaccine is not available, this does not mean an employer may automatically terminate the worker’s employment. Employers will next need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employer will need to go through the interactive process to see if the employee may possibly be entitled to accommodations such as performing the current position remotely. Additionally, employers should review to see if the employee may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s other leave policies.
When a disability prevents a worker from receiving the COVID-19 vaccine, the EEOC states employers should review (case-by-case) to figure out if that person poses a “direct threat” to the workplace’s health and safety without vaccination. Again, reasonable accommodations (teleworking, etc.) should be made to mitigate the health risk and the employee should only be prevented from entering the workplace if the direct threat posed to others “cannot be reduced to an acceptable level.”
Claimed Religious Exemption
For religious objectors to an employer mandate of the COVID-19 vaccine, employers must again try to accommodate the person’s beliefs as long as it does not pose an “undue hardship” meaning “having more than a de minimis cost or burden on the employer” as stated in the guidance.
Proof of Vaccination
Finally, the EEOC guidance states, an employer can require employees to provide proof that they received the COVID-19 vaccine independent of the employer, but the “employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”
During the early stages of the nation’s COVID-19 vaccination program and until a vaccine is fully approved by the FDA (and not just on an emergency basis), employers and institutions of higher education should thoroughly consider whether they need a mandatory policy or whether a voluntary policy would be better.
Employers should review existing policies to determine if changes need to be made. They should contact legal counsel to assist with formation of any policy to mandate the COVID-19 vaccine or to develop a program to offer (but not mandate) the vaccine to its employees. Further, institutions of higher education should form a committee now and seek legal counsel to work on the development of new vaccination policies for the 2021/2022 school year, which will be critical to students returning to campus.