COVID-19 Vaccine Updates for Employers: Legal, Practical Considerations

Posted On June 7, 2021

The start of 2021 brought hope to many eager to return to pre-pandemic life in the form of the COVID-19 vaccine. As of June 1, 2021, South Carolina alone had administered 3.79 million doses of the COVID-19 vaccine, with 1.75 million South Carolinians fully vaccinated.[1] 

However, the vaccine itself, as well as its continued administration, presents a new host of challenges for employers.  Among considerations for employers are whether an employer can legally require its employees to receive the vaccine, and, if so, whether a vaccine mandate is a practical business decision.  Additionally, employers must also consider whether to implement any changes in policies or procedures relating to COVID-19 in light of vaccinated employees.

As has been the case throughout the COVID-19 pandemic, guidance from federal agencies regarding these issues is ever-changing and leaves many questions open to interpretation.  However, federal guidance is a good place for employers to start when assessing potential options. 

December 2020 EEOC Guidance

On Dec. 18, 2020, the Equal Employment Opportunity Commission (EEOC) published guidance regarding issues related to mandatory vaccines, the Americans with Disabilities Act (ADA) and Title VII of the 1964 Civil Rights Act (Title VII).

This 2020 guidance supported a conclusion that employers can require employees to receive the COVID-19 vaccine without violating federal employment laws, subject to limited exceptions under Title VII and the ADA.

With respect to the ADA, an employer may be required to provide a reasonable accommodation to an employee with a qualified disability that prevents the individual from receiving the vaccine. In the context of a vaccine, a qualified disability could include asthma, allergies or even anxiety.

However, an employer is not required to provide a reasonable accommodation if no reasonable accommodation exists, if the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others.

Whether an employee constitutes a “direct threat” to others includes a consideration of whether an employee poses 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.”

With respect to Title VII, an employer must provide a reasonable accommodation to an employee with a sincerely held religious belief that prevents the individual from receiving the vaccine. If an employer knows that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice or observance unless doing so would pose an undue hardship, as defined by Title VII.

“Undue hardship” is a high standard, rarely invoked, and requires more than a de minimis cost or burden on the employer.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would likely not violate federal employment law for the employer to exclude the employee from the workplace.  However, this does not mean the employer may automatically terminate the worker. 

Employers will need to determine if the employee has other rights under federal, state and local laws.  For example, the South Carolina legislature has considered legislation that would make the COVID-19 voluntary and prohibit an employer from terminating an employee based on a refusal to take the vaccine. While this has ultimately not been instated, it serves as an example as to why employers must consider more than just federal employment laws when making their vaccination policy decisions.

May 2021 EEOC Guidance

On May 28, 2021, the EEOC updated its guidance to more specifically address the application of vaccine policies to various federal employment laws, including not only the ADA and Title VII, but also the Genetic Information Nondiscrimination Act (“GINA”).

The guidance affirmed the December 2020 guidance indicating that mandating a vaccine policy may not violate federal employment laws.  However, the guidance can be read to caution employers to consider whether any facially-neutral, non-discriminatory COVID-19 vaccine required could have a disparate impact on any protected group. 

The guidance also offers specific examples of what may constitute a reasonable accommodation for an unvaccinated employee entering the workplace.  This could include wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, and/or be given the opportunity to telework, or finally, accept a reassignment.

Additionally, the guidance addresses the topic of incentives from employers who chose not to mandate the vaccine.  The guidance specifically indicates that employers may provide employees with information to educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  Notably, under certain circumstances, employers may offer incentives to employees who receive COVID-19 vaccines, if the incentive (which includes both rewards and penalties) is not so substantial as to be coercive.  However, this vaccine incentive could not extend to an employee’s family member, as that would present an issue under GINA.

The guidance also addresses confidentiality, clarifying that an employer can request confirmation of an employee’s COVID-19 vaccination status without running afoul of the federal employment statutes.  However, if an employer chooses to do so, a vaccination card or other documentation demonstrating vaccination status provided by the employee to the employer is medical information about the employee and must be kept “confidential” and maintained in a separate location from the employees’ personnel files pursuant to the ADA.

Practical Considerations

Considering business risks that come with a mandatory vaccine policy is perhaps as important as considering legal risks. By implementing a mandatory vaccine policy, an employer could lose valuable employees who have no legal grounds for objection but simply will not consent to receiving the vaccine. This could be costly to business, both in terms of staffing as well as morale.  However, if an employer does choose to implement such a policy, it must ensure the policy itself and its application provide for reasonable accommodations as required by federal employment laws and does not have a disparate impact on a protected class.

As a practical matter, it could be more effective for an employer to strongly encourage vaccination, provide educational materials to employees regarding the vaccines and consider providing incentives to employees who chose to receive a vaccine. Incentives could range from providing vaccination opportunities on site to additional paid time off or de minimis gift cards.  The analysis of whether an incentive is so substantial as to be coercive is fact-specific and will need to be analyzed on the basis of all factors relating to a particular employer and the proposed incentive.

Under either scenario, whether mandatory or voluntary, an employer should consider issuing a written vaccine policy to employees and requiring an employee to execute an acknowledgment noting receipt and understanding of the same.

Moreover, in addition to the underlying question of vaccine mandates, an employer must decide how it wants to address fully-vaccinated employees.  On May 13, 2021, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) issued updated guidance for fully vaccinated individuals, exempting these individuals from masking requirements, except in limited scenarios.  In response to this updated guidance, many employers have revised and/or are considering revising their workplace mask requirements to conform to the CDC’s guidance.  The EEOC’s May 2021 guidance stopped short of directly addressing whether a policy permitting vaccinated employees to stop wearing masks in the workplace while requiring non-vaccinated employees to continue wearing masks would create any issue for employers’ continentality requirements under the ADA with respect to employee’s protected health information.  The intricacy of this issue requires deliberately crafted policies by employers that balance the currently existing CDC guidance with the confidential medical rights of an employee under the ADA.

Due to the broad scope of federal and state employment laws implicated surrounding the COVID-19 vaccine along with the ever-changing guidance regarding the application of the same, employers should consider consulting with legal counsel to ensure you understand the legal and practical considerations of the COVID-19 vaccine for your business.