The questions I receive most frequently these days relate to COVID-19 vaccinations. Can employers require vaccination? Should they? What issues arise with mandatory or voluntary vaccination programs?  

This column will cover basic considerations and provide resources for further information.

The three COVID-19 vaccines currently available are those from Pfizer/BioNTech, Moderna and Johnson & Johnson.  These vaccines are available under emergency use authorizations (EUAs). This is a level lower than full U.S. Food and Drug Administration approval and licensure. EUAs are granted when information shows a drug is effective and the known or potential benefits outweigh the known and potential risks. Fact sheets on the three vaccines and further information are available at https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines.

Courts have a long history of enforcing mandatory vaccination programs. In 1905, the U.S. Supreme Court affirmed the right of the Commonwealth of Massachusetts to mandate smallpox vaccinations in Jacobson v. Massachusetts.  As recently as 2016, a federal circuit court ruled that mandating influenza vaccination didn’t violate Title VII prohibitions against religious discrimination in Robinson v. Children’s Hospital.  

But those cases didn’t involve a new vaccine offered under an EUA. The Food, Drug and Cosmetic Act allowing EUAs states the secretary of the U.S. Department of Health and Human Services must “ensure that individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product, the consequences, if any, of refusing administration of the product … .” 

So we’re left with an apparent dilemma. The plain language of the federal statute is clear. But in addition to case law, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated pandemic guidance on Dec. 16, 2020. The guidance explicitly recognizes the statutory option for recipients to refuse the vaccine, but still permits employers to require employees to be vaccinated. 

Unfortunately, the EEOC didn’t explain its rationale. One reasonable explanation is the prohibition on forced vaccination applies to entities authorized to administer the vaccinations, not a third-party employer.

In February, a corrections officer at the Doña Ana County Detention Center in Las Cruces, N.M., brought what could be the first lawsuit to assert a violation of the Food, Drug and Cosmetic Act.  Doña Ana County imposed a requirement for all county ​employed first responders — including sheriff’s deputies, firefighters and detention officers — to be vaccinated. On March 4, the court refused to grant injunctive relief, ordering the county to rescind its order. But the case is moving forward.

Employment law attorneys are sharply divided over whether an employer may establish a mandatory vaccination program. The majority of attorneys recommend employers instead encourage voluntary employee vaccination. 

Many employers provide incentives as part of a wellness plan or separately. I recommend an employer considering financial or other incentives consult an attorney before starting this type of program.  

The EEOC provides specific guidelines of which employers must be aware to avoid discrimination claims when requiring vaccination or providing incentives for voluntary compliance. Some employees could raise either medical or religious objections to vaccination.

In the case of medical objections, an employer should reasonably accommodate employees unable to receive the vaccine because of a medical condition unless such accommodation poses an undue hardship on the employer. This is an individualized inquiry that will differ among employers and employees. 

The EEOC guidance requires employers to show that an unvaccinated 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” before excluding an unvaccinated employee from the workplace.

The Job Accommodation Network, a public-private partnership funded in part by the U.S. Department of Labor, recommends such accommodations as:

Allowing the use of an approved mask as an alternative to vaccination.

Allowing the use of other types of appropriate personal protective equipment, such as a face shield, hood, suit and gloves.

Temporarily assigning job duties that don’t require a vaccination to perform — non-direct patient care, for example.

Reassigning an employee to a vacant position or department that doesn’t require a vaccination. 

For more information on this and other accommodation questions, visit https://askjan.org. 

As in any situation involving the accommodation of a disability, an employer may require enough medical information to describe the nature of the medical condition, the limitations it causes and the accommodations  employees and their medical care providers recommend.

Employees may also raise religious objections to receiving a vaccine. The duty to accommodate is lower in these situations, however.

As with disabilities, an employer must accommodate religious beliefs and practices unless doing so poses an undue hardship to the employer. But in religious accommodation situations, an undue hardship is an accommodation that poses more than a minor hardship to the employer. While courts and the EEOC are reluctant to judge the sincerity of employees’ religious beliefs, the employer may ask the employee to explain the sincerely held religious belief upon which he or she relies to object to the vaccine and why or how that religious belief is affected by the vaccine. 

Again, each situation is different. Employers with vaccination programs should consult with an attorney to discuss their duty to accommodate employees who can’t receive a vaccine.

So what are the next steps for employers?  Employers should ask the following questions:

Does my organization need a vaccination program?  Should it be mandatory or voluntary?

Why does my organization need a vaccination program?  Does the presence of unvaccinated employees present a direct threat to the safety of employees or clients?

Can my organization accommodate those who can’t receive a vaccination?  If so, how will the organization do so?

If my organization encourages voluntary vaccination, will the organization provide incentives to employees who present proof of vaccination?

Here’s looking forward to a safer and easier 2021 than 2020 for employers.