Member Article

As the COVID-19 vaccine becomes more widely available, more employers are considering bringing their employees back to the office. In doing so, many employers have questions about whether or not they can require their employees to receive the vaccine before returning. Preliminary guidance from the Equal Employment Opportunity Commission (EEOC) suggests that employers can mandate vaccination. However, an uptick in proposed state legislation prohibiting employers from mandating vaccination coupled with unanswered questions related to individual rights to refuse the vaccine, which is currently authorized for emergency use only, may cause employers to rethink whether they should mandate vaccination. Accordingly, employers would be wise to consider alternatives, such as voluntary vaccination and incentive plans and other workplace safety measures.

Can Employers Mandate the Vaccine?

In December 2020, the EEOC issued guidance stating that employers can require their employees to receive the COVID-19 vaccine, subject to certain exceptions. First, the vaccine must be generally available to the employee population. This is currently not an issue for some industries, like health care, and will likely no longer be an issue in the upcoming months as the vaccine generally becomes more widely available to those who work in other industries. Second, employers who mandate the vaccine must provide exceptions for employees who cannot obtain it because of a medical condition or a sincerely held religious belief. For those employees, the employer may have to provide a reasonable accommodation, such as excusing the employee from receiving the vaccine and/or allowing the employee to continue to work from home.

Despite this guidance, questions remain as to whether employers can practically require employees to receive the vaccine given the vaccine’s Emergency Use Authorization (EUA) by the Food and Drug Administration (FDA). The premise behind the EUA classification is that in emergency situations (like the current pandemic), the FDA is permitted to authorize the market entry of drugs, including vaccines, that have not yet been approved by the FDA’s full formal process. Given the abbreviated timelines and informal approval process, the Federal Food, Drug, and Cosmetic Act (FDCA) has heightened requirements for EUAs, including that recipients be informed they have “the option to accept or refuse administration of the [EUA] product [and] of the consequences, if any, of refusing administration of the product.”^[1] While the EEOC acknowledged the FDCA’s requirement with respect to EUAs in its guidance, it did not address whether employers must give the required notice to employees in mandating vaccination. Further, in light of the statutory language in the FDCA, it remains unclear whether employers can mandate employees to get vaccinated under threat of termination.^[2]

In addition to questions about employers’ ability to mandate EUA vaccines, several states have introduced proposed legislation designed to prevent employers from mandating COVID-19 vaccines. For example, Alabama House Bill 214 would prohibit employers from taking adverse action against employees or prospective employees based on immunization status. Arizona Senate Bill 1648 would prohibit individuals or entities from requiring persons to receive the COVID-19 vaccine as a condition of employment. Georgia House Bill 413 would bar any law requiring vaccination as a condition of employment if certain requirements are not met, including the requirement that the vaccine receive formal FDA approval (not emergency approval). Although it is not clear whether any such proposals will actually become law, they are generally indicative of a degree of legal and perhaps even personal skepticism related to employer-mandated vaccines.

Finally, employers may encounter significant practical challenges with implementing mandatory vaccine policies. Some surveys indicate that a significant portion of the population is hesitant to receive the vaccine, with wide-ranging and sometimes complex reasons for hesitancy. For example, research conducted by the Society for Human Resource Management (SHRM) in February 2021 revealed that 28% of employed Americans said that they would not receive the vaccine even if it cost them their job.^[3] Those employees hesitant to receive the vaccine reported that they were either concerned about its side effects, did not trust COVID-19 vaccines in general, or planned to wait and see if the vaccines were safe before getting vaccinated. Administering an effective mandatory vaccination policy may require imposing serious consequences for non-compliance, up to and including termination. Therefore, if companies have large numbers of employees who do not want to receive the vaccine, they should consider (i) whether they are willing to take on the challenge of navigating and counseling employees with vaccine concerns, and (ii) what the impact on their business could be if they ultimately have to terminate employees who refuse the vaccine.

Voluntary Vaccinations and Incentive Policies

Given these unanswered questions, employers may find that they will avoid more legal risks by encouraging but not mandating vaccination. Such encouragement may be accomplished in the form of a voluntary vaccination incentive plan. In implementing such a plan, employers must carefully consider what incentives are permissible without running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). The EEOC previously issued proposed guidance allowing for “de minimis” incentives, such as a water bottle or gift card of modest value, to encourage participation in such a plan, but withdrew its guidance in February 2021. While the EEOC’s current stance regarding incentives remains unclear, employers should consider offering incentives that are large enough to incentivize vaccination but small enough not to open the door to allegations of coercion or discrimination—such as a gift card of no more than $100 or additional paid time off. More risk-averse employers may consider simply offering paid time off to employees who receive the vaccine. Another option is to extend the emergency paid leave benefits previously offered under the Families First Coronavirus Response Act (FFCRA) to employees who take time off to receive the vaccine, pursuant to the American Rescue Plan Act (ARPA). Specifically, the ARPA, which President Biden signed into law on March 11, 2021, gives tax credits to employers who extend FFCRA leave benefits and establishes that taking time off to receive the vaccine is a qualifying reason for emergency paid sick leave. Regardless of which incentives are offered, employers must be considerate of employees with disability- or religious-based objections who cannot earn the incentive. In such situations, employees who cannot get the vaccine might be asked to watch a COVID-19 safety video or attend a safety class in order to obtain the same incentive that the vaccinated employees receive.

Another consideration for employers is whether to offer vaccinations on-site or off-site through a third party. While offering the vaccine on-site and free of charge may be an added motivation for employees, offering to reimburse the employee’s portion of his or her healthcare costs to receive the vaccine from a third-party is arguably the more risk-averse option. That way, the third party is responsible for asking the pre-screening medical questions that may otherwise be considered impermissible under the ADA or GINA if the employer asked such questions.

Can Employers Require Employees to Return to the Office?

Despite the availability of the vaccine, many employees still may not want to return to the office, either because they are not comfortable doing so, they do not want to receive the vaccine, or they simply prefer to work from home. Employers can require employees to return to the office as long as they are complying with applicable local, state, and federal laws. For example, some employees may have physical or mental health conditions that require employers to allow them to continue to work from home as a reasonable accommodation. However, an employee without a disability who refuses to come to the office out of concern that he or she will contract the virus is not entitled to a reasonable accommodation.

Even when COVID-19 is firmly in the rear view, expectations regarding working remotely may have changed permanently for many companies and employees. Businesses and employees alike may wish to continue to take advantage of efficiencies and flexibility offered by remote working (and the option for remote work may become a more important factor in recruiting and retention). Overall, regardless of whether employers require employees to return to the office or continue to allow flexibility with working from home, it is important for employers to create clear and uniformly applied policies with consideration for any applicable legal requirements.

Finally, employers may wonder whether requiring employees to return to the office but not mandating vaccination creates legal risk. Given the uncertainties surrounding the legality of mandatory vaccination policies, any such risk is likely minimized by workplace policies encouraging and supporting vaccination. However, even with an increasingly vaccinated workforce, it will be critical for companies to continue to implement workplace safety measures so long as they are still recommended by the CDC and OSHA.

Employee Waivers and Other Protective Measures

In part because some employees may decline vaccination, some employers have considered having their employees sign COVID-19 liability waivers. Such employee waivers, however, generally have little value because employees cannot waive their prospective right to file workers’ compensation claims or their right to pursue other statutory employment claims. Accordingly, the better option is for employers to continue to implement and monitor safety precautions in the workplace, such as social distancing, mask-wearing, frequent handwashing, personal protective equipment, temperature checks, and daily self-screening certifications. Employers may also display notices throughout the workplace warning of the risks related to COVID-19.

For questions about return-to-work issues and vaccination plans in the workplace, please contact the MMM Employment Team.