Can Employers Mandate a Vaccine Authorized for Emergency Use?

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Federal and state anti-discrimination agencies have issued guidance for employers that want to require workers to get a COVID-19 vaccine—but at least one lawsuit has claimed that employers can't mandate a vaccine that is approved only for emergency use. While this argument might not hold up in court, employers should be aware of the risks associated with a vaccine mandate.

When employees refuse a vaccine, the employer should address their concerns and explain the reasons why the company has adopted a mandatory vaccination policy, said Mark Goldstein, an attorney with Reed Smith in New York City. "An open dialogue and education will be key, as will following FDA updates in this regard and consulting with legal counsel."

Brett Coburn, an attorney with Alston & Bird in Atlanta, said there are many reasons why an employee may be unwilling to receive a COVID-19 vaccine, and employers may need to explore reasonable accommodations, particularly with employees who have disability-related and religious objections to being vaccinated.

Emergency Use Authorization

Distribution of COVID-19 vaccines has been issued under the Food and Drug Administration's (FDA's) Emergency Use Authorization (EUA) rather than the FDA's usual processes. But the FDA has said that the vaccine has met its "rigorous, scientific standards for safety, effectiveness and manufacturing quality" and that "its known and potential benefits clearly outweigh its known and potential risks."

An employee who recently filed a lawsuit challenging an employer's vaccine mandate argued that the EUA states that people must have "the option to accept or refuse administration of the [vaccine]" and be informed "of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks."

Although the employee in the case works in the public sector, many employment relationships in the private sector are at-will, which means either the employer or the worker can terminate the employment for any lawful reason. An employer that mandates a vaccine may argue the consequence of refusing a vaccine is being fired.

"Consensus in the legal community has been that, at least in the private sector, employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons," said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers generally can mandate COVID-19 vaccinations. "The EEOC specifically addressed vaccinations that are authorized or approved by the FDA," noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.  

The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA. The DFEH specially noted that the FDA has authorized and recommended three COVID-19 vaccines—all of which have been authorized under an EUA.

But vaccine mandates may still be risky for employers. "It is possible that employees who are terminated for refusing to receive a vaccine authorized by the FDA under an EUA could try to pursue claims for wrongful termination in violation of public policy," Coburn said. "The viability of such claims will depend on applicable state law regarding a potential public policy exception to at-will employment and how courts—state and federal—construe the EUA wording."

The regulatory framework is still unclear, he said, noting that a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine. "If these bills become law, the uncertainty regarding the EUA issue will become moot in those states, at least as of the time the laws go into effect."

Reasonable Accommodations

The EEOC issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.

California's guidance noted that the FEHA prohibits employers from discriminating against employees or job applicants based on a protected characteristic—such as age, race or sex—and requires employers to explore reasonable accommodations related to a worker's disability or sincerely held religious beliefs.

"If an employee has a medical condition or sincerely held religious belief that would prevent them from being able to be vaccinated, their employer must go through the interactive process to determine if a reasonable accommodation is available," Welch said. She recommended that employers have accommodation forms available to employees to begin the interactive process and document the steps the employer took to attempt to arrive at a reasonable accommodation.

"Accommodations could take various forms, depending upon the employee's job and setting," Troutman said. Employers may offer remote work, change the physical workspace, revise practices or provide a leave of absence. "In each situation, the employer must determine whether an accommodation would enable the employee to safely perform the essential functions of their job," he explained. 

Coburn noted that employees might refuse to receive a vaccine for reasons that aren't legally protected, such as a general distrust of vaccines. He said employers need to be very thoughtful as they consider whether to mandate vaccines because employers may have to fire a material portion of their workforce who refuse to be vaccinated or allow some employees to ignore a company policywhich can lead to discrimination risks and employee morale issues.

Encouraging Vaccination

"Most employers are encouraging vaccination rather than requiring it," Welch observed. 

Coburn recommended that employers focus on the following measures to encourage employees to receive a vaccination:

  • Develop vaccination education campaigns.
  • Facilitate vaccine access.
  • Ensure that employees who participate in an employer group health plan know that the cost of vaccination is covered. 
  • Provide paid time off for employees to get the vaccine and recover from any potential side effects.
  • Provide incentives to employees who get vaccinated.

Employers that want to offer incentives should be mindful of wellness program limitations and offer alternative ways for employees who cannot get vaccinated to receive the incentives, Coburn noted.

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