Operation Warp-Speed well under way and millions of Californians vaccinated for COVID-19, many still have yet to be vaccinated. And some do not want to be. In fact, a recent survey by the Kaiser Family Foundation found that 27% of Americans are “vaccine hesitant,” saying they probably or definitely would not get a COVID-19 vaccine even if it were available for free and deemed safe by scientists. Among healthcare workers who are first in line to get vaccinated, that number is even higher: 29%. In these instances, the question arises about whether an employer can require an employee to be vaccinated before returning to work.
Mandatory Vaccine Policy
Can a California employer have a mandatory vaccination policy? The answer is likely yes, under recent EEOC guidance. However, that does not mean it is in the company’s best interest to enforce such a policy if a large segment of the workforce is against it. This is where both sides of the issue needs to be weight. Furthermore, there are two main exceptions for denying a vaccine. Employees can object to the vaccine if they think it will exacerbate an established disability or medical condition and/or if it goes against their sincerely held religious belief.
In either case, the employer would likely want to work with the employee to find a reasonable way to accommodate the worker, such as allowing them to work from home instead of going into an office. If they work on-site, they can be moved to an area where they’re less exposed to other employees.
EEOC Guidance on Vaccines
Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its Covid-19 guidance to address the issue of mandatory vaccinations in the workplace. While the EEOC guidance does not directly state that such a policy is lawful, it does address a series of questions based on the assumption that an employer has adopted a mandatory policy, highlighting how an employer should respond to requests from employees who cannot or do not wish to be vaccinated against COVID-19.
Under the EEOC guidance, it appears that employers may require employees to receive a COVID-19 vaccine before reporting to work, but any such policy must meet certain requirements under federal anti-discrimination laws.
According to the Americans with Disabilities Act (ADA), all employers must provide reasonable accommodations to any employee whose disability prevents them from being vaccinated, unless doing so is an “undue hardship,” (i.e. a significant difficulty or expense). It is important to note that in line with the recent EEOC guidance, an employer may deny an exemption to an employee with a covered disability when the “unvaccinated employee would pose a direct threat” to the health and safety of other workers. You will want to speak with experienced legal counsel about whether such a direct threat exists in your workplace.
Under Title VII of the Civil Rights Act, an employer must provide reasonable accommodations for employees unwilling to be vaccinated due to religious reasons – unless it would pose an undue hardship on the employer. In this instance, the “undue hardship” standard only requires that the employer demonstrate that providing an accommodation imposes “more than a de minimis cost or burden on the employer.”
Should employers mandate COVID-19 vaccinations?
While the EEOC Guidance provides a framework under which mandatory vaccination requirements may be lawful, employers still need to carefully consider (1) the benefits, risks and expenses that may accompany a mandatory vaccination policy and (2) whether requiring vaccination is truly necessary.
Employers with unions will be required to adhere to applicable memorandum of understanding (“MOU”) provisions and fulfill meet and confer responsibilities for represented employees in order to mandate vaccinations. A careful eye should review any rules or MOU provisions that potentially limit the ability to mandate vaccinations or prohibit the ability to change existing terms and conditions of employment without union agreement.
Additionally, all employers should keep in mind that, under applicable wage and hour laws, if vaccines are mandated, the time it takes for an employee to get vaccinated should be treated as compensable work time. Similarly, any costs associated with getting the vaccine would be reimbursable business expenses. For
Lastly, employers will be well-advised to consider their employee handbooks and policies relating to vaccination. For example, how will the employer collect and protect employees’ vaccination records? What are any potential threats to employees, the public, customers, or clients if the employer does not mandate vaccination? Can an employer offer incentives to encourage vaccination? Will employers continue to maintain health and safety measures such as masks and social distancing after employees are vaccinated?