To Require or Not Require (Vaccinations)...That Is The Question Posted February 11, 2021
The State currently expects to have enough supplies to vaccinate most Californians by the summer of 2021. Many employers are wondering if they can require their employees to be vaccinated. The answer is likely yes, with certain exceptions, but employers should proceed with caution.
The Equal Employment Opportunity Commission (“EEOC”) has opined that mandatory vaccinations would be permissible. The EEOC stated that employers can require that their employees receive COVID-19 vaccinations, with certain exceptions, but only if the failure to be vaccinated poses a direct threat to the health or safety of other employees.
The California Department of Fair Employment and Housing (“DFEH”), on the other hand, has not formally weighed in with any detail on an employer’s ability to require COVID-19 vaccinations. However, on December 15, 2020, in a somewhat cryptic showing of support for the vaccine, the DFEH tweeted, “COVID-19 vaccines are supported by California’s top medical experts…It’s time to end the pandemic….”
When deciding whether to implement a mandatory vaccination policy, employers should consider the following:
Reasonable and necessary for the business: Is a mandatory vaccination policy reasonable and necessary for your specific business? What is "reasonable" depends on your company’s circumstances, including your industry, whether your employees are often in contact with each other or the public, and similar considerations. A reasonable policy for those in a busy healthcare practice or airline flight crew might differ from that of a small plant nursery where employees are outside and adequately distanced by the nature of their job duties.
Reasonable and necessary for employees: Is a mandatory vaccination policy reasonable and necessary for all of your employees? There is generally no basis on which an employer can require that entirely remote workers be vaccinated, because they do not pose a direct threat to the health and safety of others. This also may be true if you operate small satellite offices. As with all policies, employers should ensure that any differences in vaccination requirements are for legitimate business reasons, and are not discriminatory on their face or in their implementation.
Reasonable accommodation: Employers must hold an interactive discussion and conduct a reasonable accommodation analysis with any employees who state that they cannot receive a vaccine because of a doctor-supported disability or a “sincerely-held religious belief.” Be prepared to consider potential accommodations in lieu of mandating the vaccine, including allowing employees to work remotely, if possible. At the same time, merely disregarding the vaccination policy and allowing the employee to continue working without modification may undermine the employer’s assertion that health and safety requires that all employees be vaccinated. Consult with legal counsel if a situation arises in which it appears that an accommodation cannot be made.
The vaccination process: Are you planning to provide vaccinations onsite or require employees to obtain their own vaccination and submit proof of vaccination? If the vaccinations occur onsite, there are practical considerations that must be evaluated, including who will administer the vaccinations, where it will be done and what information will be collected or documented. The person(s) administering the vaccination can ask a limited number of pre-screening questions to confirm that there are no medical concerns that would prevent an employee from safely receiving the vaccine. However, all questioning, whether it is before the administration of a vaccine or when obtaining proof of a vaccination, should be strictly limited to obtaining information that is job-related and consistent with business necessity. Employers who request too much information or wade into disability issues may run afoul of the requirements of the Americans with Disabilities Act (“ADA”) or Fair Employment and Housing Act (“FEHA”) regarding medical examinations. Employee medical information must be kept strictly confidential. Employers should consult with employment counsel for proper screening questionnaires.
Vaccination complications: The CDC has noted that some people might experience post-vaccination symptoms, including fever or pain at the injection site. Although the symptoms are generally mild and resolve quickly on their own, employers could see increased absences following administration of the vaccine. Consider staggering the vaccinations rather than vaccinating the entire workforce at the same time.
Required notices: Be prepared to provide required notices to employees before vaccinations. Currently, United States COVID-19 Vaccination Program providers are required to provide certain information, including an EUA Fact Sheet for Recipients (click here) and a vaccination record card that includes the date that the vaccine was administered, the manufacturer of the vaccine and when they need to return for a second dose.
Wage and hour issues: Allow sufficient time for vaccinations and cover the cost of that process. If the employer requires that employees be vaccinated outside of the workplace, the employer must also pay for the vaccine costs and permit the employee to obtain the vaccination during working hours or pay for the time spent getting the vaccine (including travel time and mileage for non- hourly employees. The employer also may have to pay for any time off necessitated by post-vaccination symptoms.
Workers' compensation: Consult with your workers’ compensation carrier about the risks of a claim if an employee has adverse side effects and blames the company for forcing the vaccine upon them. You also could be expected to cover the costs of any medical care arising out of an adverse reaction to the extent that those costs are not covered by worker’s compensation or other benefits.
Employee refusals: Carefully consider (and discuss with counsel) your next steps if an employee refuses to get vaccinated (some polls show that up to 35% of Americans have indicated they will decline the vaccination). If you require it and an employee will not comply, you are faced with having to terminate the employee, which may result in a costly and time-consuming wrongful termination claim. You also may face the loss of a good portion of your workforce if numerous people are unwilling to be vaccinated.
Union issues: Union concerns could affect the employer’s ability to implement a new vaccination policy. A vaccine mandate might be interpreted as a term or condition of employment and may be met with resistance from union representatives. Employers considering a vaccination mandate should consult with union representatives regarding their position on such a policy.
To avoid some of the burdens imposed by a mandatory vaccine policy, a safer practice would be to encourage employees to be vaccinated rather than requiring them to do so. Employers can incentivize employees by offering bonuses, vacation days or other benefits to those who choose to be vaccinated, without making it a requirement. Be mindful of wage and hour issues related to the provision of non-discretionary bonuses, and watch for discrimination issues if you are offering incentives to certain employees but denying those incentives to employees who would otherwise be willing to receive the vaccine but cannot do so for medical reasons or sincerely-held religious beliefs.
If you decide to mandate vaccinations and an employee refuses, have an interactive discussion with the employee to better understand the employee’s objections and consider any legally-protected basis for refusing the vaccination. Consider holding off on termination and first putting the employee on a temporary unpaid leave of absence. This practice will give the employee an opportunity to consider the available options before being terminated.
For practical reasons, it is best to refrain from implementing a formal policy until the vaccines are available to your entire workforce. While awaiting widespread availability, use this time to consider whether you want to implement a mandatory vaccination policy and, if so, how you will handle the above issues. Consult with legal counsel regarding any questions or concerns.
As noted above, the State of California has not released specific guidance regarding mandatory COVID-19 vaccinations. Their guidance, or updated guidance from the EEOC, could change what employers are required and allowed to do. Employers should continue to monitor guidance from the EEOC (click here), as well as the DFEH (click here), and watch for future legal updates from LightGabler.
For further information regarding COVID-19 questions, or other employment law issues, contact the attorneys at LightGabler.