Sep 06, 2021
COVID-19 Vaccines and the Workplace
Sep 06, 2021
By Cari Cohorn
More than 18 months into the COVID-19 pandemic, the virus continues to present challenging legal issues to employers struggling to balance the competing goals of resuming full business operations versus protecting the health and safety of employees, clients, and vendors. This article presents a broad overview of the current legal status of employer efforts to require or encourage vaccinations.
Public and Private Employers Can Impose Mandates – Within Limits
Various forms of workplace vaccination programs – ranging from true mandates (in which unvaccinated employees are disciplined or even terminated) to incentives and voluntary wellness programs focusing on vaccines – are becoming increasingly widespread. For example, President Biden recently issued executive orders requiring federal employees and contractors to get vaccinated and instructing the Occupational Safety and Health Administration to issue regulations requiring all employers with more than 100 employees to mandate vaccines. The City and County of San Francisco already requires many of its employees, subject to certain exemptions, to be vaccinated and has ordered many private businesses – including restaurants, bars, theaters, and gyms – to require patrons and staff to provide proof of vaccination. Still other private businesses, including many large law firms, have voluntarily adopted programs requiring or encouraging vaccinations among employees and others entering their offices. For now, California state law allows private employers to set their own policies (subject to certain legal limitations) concerning vaccinations, masks, and other protections against COVID-19.
Limitations on Mandates: Medical and Religious Exemptions
The United States Department of Justice, the Equal Employment Opportunity Commission, and California’s Department of Fair Employment and Housing have all issued guidance confirming that employers may lawfully require workers to get vaccinated as a condition of coming to the workplace. In fact, these and other agencies have emphasized employers’ legal duty to provide safe and healthy workplaces. This duty must be balanced against the need to reasonably accommodate employees needing legitimate medical or religious exemptions.
Exemptions for Medical Condition or Disability
Any employer implementing a vaccine mandate must allow medical exemptions for employees with underlying disabilities or other medical conditions that could make getting vaccinated unduly risky or hazardous.1 For example, some people have severe allergies to components of the vaccine, while others who are immunocompromised or have a history of Guillain-Barré syndrome or other ailments may legitimately be advised by their physicians not to take a COVID-19 vaccine. Anecdotal reports suggest that requests for medical exemptions have so far been quite rare, though that is likely to change as more employers adopt vaccination policies.
Exemption for Sincerely Held Religious Beliefs
Guidance from both the EEOC and DFEH emphasize the need for employers to allow exemptions from vaccination policies for workers whose sincerely held religious beliefs prohibit them from receiving a COVID-19 vaccine, though this view is not universally accepted either by religious leaders or by lawyers. For example, the Vatican has issued a statement that the COVID-19 vaccines are morally acceptable, and several Catholic organizations, such as the Diocese of El Paso, Texas and the Diocese of Lexington, Kentucky, have announced vaccine requirements for their personnel, allowing only medical – not religious – exemptions.
From a legal perspective, Erwin Chemerinsky, Dean of UC Berkeley School of Law, persuasively argued in an op-ed in the Los Angeles Times that religious exemptions from government-enacted mandates are neither legally required nor are they good policy, since they could allow virtually anyone to opt out of vaccine mandates – though Dean Chemerinsky’s analysis does not apply with equal force to mandates created by private employers in California. The United States Supreme Court has long held that federal laws prohibiting employment discrimination require that employers need only bear a de minimis cost when accommodating employees’ religious beliefs, and vaccine exemptions (at least arguably) could result in significant costs to employers. California law, by contrast, requires employers to accommodate an employee’s religious belief unless the accommodation would require “significant” difficulty or expense.
Explore Possible Accommodations
When an employer has notice that an employee needs an accommodation, it must engage in a good-faith interactive process and consider, with the employee, individualized options that may allow the worker to perform his or her duties while also protecting others in the workplace. Possible accommodations include, but are not limited to, remote work, altering the unvaccinated employee’s schedule such that he or she is present at the workplace only when few (or no) other workers are there, or requiring the unvaccinated employee to wear personal protective equipment and/or to undergo frequent testing. If the employee needs an accommodation for a temporary condition that makes a vaccine inadvisable, a leave of absence until the condition resolves may be an appropriate accommodation. Note that the costs of accommodations, like any other costs related to an employer’s vaccination/testing policy, must be borne by the employer, not the employee.
There are two exceptions to the general rule requiring employers to provide reasonable accommodations. First, employers do not have to offer accommodations that create an undue hardship. Second, employers need not accommodate an employee who poses a “direct threat” – i.e., a significant risk of substantial harm to their own or others’ health or safety that cannot be reduced or eliminated by a reasonable accommodation. As always when determining whether certain accommodations are required, employers and their attorneys need to conduct a fact-specific analysis.
The EEOC has provided guidance as to what factors need to be considered in connection with vaccination-related accommodations. As to the undue hardship analysis, the proportion of other employees who have received vaccines, the amount of contact the unvaccinated employee is likely to have with others, and the extent to which the vaccination status of those others (especially clients, guests, vendors, and other non-employees) is unknown should be assessed. With respect to whether a direct threat exists, the EEOC advises employers to evaluate the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of the potential harm. Although the analysis of these factors will likely evolve as circumstances related to the virus continue to develop, the EEOC has confirmed that a determination than an unvaccinated person will expose others in the workplace to COVID-19 constitutes a direct threat.
Alternatives to Vaccine Mandates
Several options for protecting workplace health and safety, short of vaccine mandates, are available to employers. Employers can lawfully take such steps as inquiring about any symptoms of COVID-19 an employee or guest may have, can take temperatures before employees enter the workplace, and can send home any employee with a fever or other symptoms. DFEH and EEOC agree that a COVID-symptomatic person is unable to perform essential duties in a manner that would not endanger the health or safety of others in the workplace, even with reasonable accommodations. Employers can require anyone entering the workplace to wear masks and/or other personal protective equipment – though employers should be mindful of any reasonable accommodations that may be needed with respect to PPE (such as providing modified gowns for an employee who uses a wheelchair). Employers can require employees to undergo viral testing to determine whether an employee currently has the COVID-19 virus but cannot require antibody testing.
Note that employers – not employees – must bear the cost of all required testing, PPE and vaccination (if there is any out-of-pocket cost). Additionally, if employees have to travel off-site to get a required vaccine and/or test, they should be compensated for their time and for any travel expenses (e.g., mileage or public transit costs).
No law prohibits employers from offering incentives to encourage employees to get vaccinated. Many employers are offering gift cards or extra vacation days to employees who provide proof of vaccinations, and some companies, such as Vanguard Financial Group, have offered cash bonuses of up to $1,000. Although many employment lawyers advise that incentives should not be so large as to be “coercive” or discriminatory, neither caselaw nor administrative guidance provides any real clarity as to how large an incentive is too large. Employers may gain some protections against allegations that their incentives are discriminatory by providing alternate ways for workers with medical or religious exemptions to earn the incentive, such as participating in a wellness program to help them quit smoking or an exercise course.
Less clear is whether employers can penalize employees without exemptions for refusing to get vaccinated, or to provide proof of vaccination. Delta Airlines recently announced it will begin charging unvaccinated employees on the company’s health plan a monthly surcharge of $200 – so litigation on the legality of such penalties may be imminent. Even if legal, penalties may negatively impact employee morale and increase the likelihood of litigation and/or administrative charges.
Tricky Issues for Employers: Confidentiality and Retaliation
It should go without saying – but due to widely circulating misinformation, needs to be said – that neither the Health Insurance Portability and Accountability Act, the Genetic Information Nondiscrimination Act, nor any other law prohibits California employers or businesses from requiring employees or patrons to provide information about their vaccination status in order to continue employment or enter a business’s premises. While it is clearly legal for employers to obtain this information, once obtained, the information must be handled carefully. As before the pandemic, all employers must protect confidential medical information received from employees. Do not store medical information in an employee’s personnel file, and make sure to store it in a location/manner in which access is limited to only those with a legitimate need.
The duty to protect confidential employee information must be balanced against the duty to respond to health and safety risks in the workplace. For instance, when an employee tests positive, an employer has a duty to report to public health entities and to protect other workers. According to the DFEH, an employer can notify employees that, for example, an employee in a specific location tested positive on a particular date – but cannot disclose the name or identity of the employee. It may be possible, or even easy, to determine the identity of an employee of a small employer based on this information. The many local public health reporting requirements and the EEOC guidance on “direct threats” will likely be a viable defense to employers who disclose no more information than required.
Finally, employers should be prepared for retaliation claims. Employees are protected from retaliation for engaging in “protected activity.” Protected activity includes opposing practices that an employee believes – correctly or incorrectly, in good faith – violates the law. Even if the employee requesting an exemption or an accommodation has no legal basis for doing so, if he or she makes the request in good faith, he or she is protected. As with any tough employment law issue – call your lawyer!
1 Some lawyers and pundits argue that exemptions and reasonable accommodations only need to be made for employees with “disabilities” (as defined under the Americans with Disabilities Act and/or the Fair Employment and Housing Act), which may not include all employees for whom the vaccine might be contraindicated. Regardless whether that argument is correct, there could be other bases for liability against an employer who requires vaccines or testing without allowing medical exemptions. For instance, if a vaccine is a condition of employment, any injury from a vaccine would likely be covered by worker’s compensation.
Cari Cohorn is an attorney with a proven track record of successfully representing clients through all phases of employment disputes. Ms. Cohorn represents both employers and employees, focusing her practice on providing strategic, cost-effective solutions to a variety of employment law matters.