THE VACCINE MANDATE LANDSCAPE

The landscape is evolving almost every day on the subject of mandatory vaccinations despite the fact that government mandates of vaccines are not new. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws. ("It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.")

Since the start of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has issued guidance for employers on addressing COVID-19 in the workplace, adding guidance regarding vaccines in December 2020. On May 28, the EEOC updated its guidance (with a minor update following on June 28), permitting employers (including federal and state governments) to implement COVID-19 vaccine mandates, subject to certain exemptions. A disability or sincerely held religious belief that prevents vaccination are they only exemptions to any vaccine requirements that employers must consider.

And in fact, the federal and many state governments have mandated vaccinations for their employees. On July 29, 2021, the Biden Administration issued a fact sheet announcing further actions to strengthen its previous mandates concerning vaccination of federal employees and federal contractors. In California, Governor Newsom ordered that state employees and health care workers must show proof of vaccination unless exempted, and if exempted, get tested regularly.

In the Bay Area, health officials from a number of counties have also urged private employers to require vaccinations of their employees. At least one federal court has upheld a private employer’s mandatory COVID-19 vaccination policy: In Bridges, et al v. Houston Methodist Hospital et al, Docket No. 4:21-cv-01774 (S.D. Tex. June 12, 2021), the court dismissed a challenge to the hospital’s mandatory vaccination policy for employees that was brought on the grounds that "currently available COVID-19 vaccines are experimental and dangerous" and that the mandate violated public policy. In dismissing the complaint, the court referenced the EEOC's statement that "employers can require employees be vaccinated against COVID-19 subject to reasonable accommodation for employees with a disability or sincerely held religious beliefs that preclude vaccination."

Employers may require all employees entering the workplace to be vaccinated because the EEOC has determined that COVID-19 in the workplace poses a direct threat to co-workers, clients, customers and the public. The EEOC's recent guidance updates Section K—regarding vaccines—of its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” It elaborates on its earlier guidance (particularly regarding incentives under the ADA in K.16 and under the GINA in K.18) and as before does not take a position on the FDA's Emergency Use Authorizations (EUA) status.

THE EEOC MAY 28TH GUIDANCE

Medical Information, Disability-Related Questions and Accommodations

K.1. The EEOC reiterated that the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations such as disparate impact. For example, offering voluntary vaccination only to certain groups of employees would not be permissible under EEO laws. (K.10.) The EEOC also reminds employers that accommodating a disability includes pregnancy-related disabilities. (K.13.)

K.2. The EEOC suggests the following as accommodations for employees not vaccinated due to valid exemptions: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

K.4. The EEOC confirms that an employee’s COVID-19 vaccination is confidential medical information under the ADA. It also cautions that ADA restrictions on disability-related inquiries apply to the screening questions in any mandatory vaccine program that an employer or employer's agent administers. This means that the inquiry must be job related and consistent with business necessity:

The ADA’s restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine if the vaccine is administered by the employer or its agent. An employer’s agent is an individual or entity having the authority to act on behalf of, or at the direction of, the employer. (K.7.)

If the employer's program is voluntary, meaning that employees can choose whether or not to get the COVID-19 vaccine from the employer or its agent, "the employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity. However, the employee’s decision to answer the questions must be voluntary." (K.8.)

K.5. Employers may require all employees entering the workplace to be vaccinated even though it knows that some employees may not get a vaccine because of a disability. In the case of an employee with a disability preventing vaccination, the employer must demonstrate the employee would be a direct threat to themselves or others through a two-step inquiry: (1) does the non-vaccinated person pose a direct threat? and (2) if so, is there a reasonable accommodation that would reduce or eliminate the threat?

As before, in considering accommodations, the EEOC notes that an employer should consider the overall vaccination rate:

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p). Employers are advised to consider all the options before denying an accommodation request. The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. (K.6., emphasis added.)

K.9. It is not a disability-related inquiry for an employer to ask employees whether they obtained a COVID-19 vaccine from a third party, because the employer is not asking a question that is likely to disclose the existence of a disability. "However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential."

K.15. The EEOC confirms that an employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits genetic information discrimination in employment. Genetic information includes information about an individual's genetic tests, an individual's family members' genetic tests, and information about the manifestation of a disease or disorder in an individual's family members.

Incentives

K. 16. An employer may provide incentives to employees who can demonstrate that they received a COVID-19 vaccination from a third party because it is not a disability-related question. It may also provide an incentive to employees for voluntarily receiving a vaccination that the employer or its agent administers. The Biden Administration's July 29, 2021 fact sheet encourages small employers to give incentives. However, for the employer program, the EEOC points out the incentive should not be "so substantial as to be coercive," as a very large incentive would put pressure on employees to disclose medical information. (K.17.) These employee incentives are legal under GINA as long as the employer does not acquire genetic information. (K.18. and 19.)

K. 20. Despite the go-ahead for employee incentives under GINA, the EEOC provides that an employer may not offer an incentive to an employee to have that employee's family member vaccinated:

Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee. The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information.

The employer may still offer an employee's family member the opportunity to be vaccinated. (K.21.)

---

^{1The Network for Public Health Law has published a summary, periodically updated, of vaccine-mandate litigation throughout the U.S.}