After nearly a year of making difficult employment decisions, businesses across the U.S. face one more question: Should I make COVID‑19 vaccinations mandatory or voluntary for returning employees?

As the vaccine rolls out and workplaces reopen, employers are looking for guidance on how to handle the issue. To date, the federal government has not mandated the vaccine, although state and local jurisdictions could do so.¹ For employers seeking to require vaccines, the EEOC has issued guidance on how to comply with pertinent federal discrimination laws. However, even if employers can mandate a vaccine and successfully navigate the numerous laws, many employers are opting for more flexible approaches. According to the Society for Human Resource Managers (SHRM), 61% of surveyed employers say they intend to encourage rather than mandate a vaccine.² There are many factors to consider in deciding what approach is best for any one employer, including legal risks, employee relations and morale. Here I discuss the guidance from the EEOC and the choices that businesses are making today on the “mandate or encourage” question.

EEOC and a Mandatory Vaccine

The EEOC released updated technical assistance to the business community on December 16, 2020, essentially permitting mandatory vaccines as a condition for continued employment. There are two major exceptions to this general rule: (i) disability or (ii) religious discrimination.³ Through a Q&A format, the EEOC details how an employer can determine if disability or religious objections exempt the employee from a vaccine requirement. We urge reference to the full EEOC publication for important details but summarize the guidance.

Under the Americans with Disabilities Act, for a vaccine or any safety-based qualification standard, an employer must be able to show that a “direct threat” to health and safety exists and, if individuals with disabilities are affected, there is a “significant risk of substantial harm” that cannot be eliminated or reduced by “reasonable accommodation.” The employer cannot exclude the unvaccinated employee from the workplace unless there is no way to provide a reasonable accommodation without “undue hardship.” The employer must make an individualized assessment of workplace risk and accommodation options. Allowing an employee to work remotely might be a reasonable accommodation for an office environment without undue hardship to the employer (particularly if the employee was already working remotely), but it might not be reasonable for other settings, such as restaurants and retail establishments.

The test for religious discrimination starts with the employee claiming a “sincerely held religious belief” for rejecting the vaccine. At that point, the same “reasonable accommodation” - absent “undue hardship” - standard applies. Without a valid disability or religious reason for refusing the vaccine, the employer is not obligated to accommodate the employee. In other words, a purely personal objection to vaccines by itself would not satisfy the exception. The EEOC guidance makes clear that state and local laws, as well as other federal laws, could impose additional or different requirements. This is a complex area, and the risk of discrimination lawsuits may give some employers pause before adopting a mandatory vaccine policy.

Various Employer Options

Through reading articles published by employment law experts, we can glean how attorneys are viewing the risks and how companies are answering the vaccine question.⁴ These articles weigh and balance the discrimination concerns as well as health, employee relations and morale issues. Although workers are becoming more accepting of a vaccine, a significant number - roughly 25% - say they will refuse it for personal reasons. After weighing and balancing these factors for their own organizations, employers who have taken a position are “encouraging” rather than “mandating” vaccines.

Here are the options that law experts are discussing at this time:

• Mandate - Most of the law firm articles caution employers about requiring vaccinations for employees, recommending great care in how the EEOC guidelines and other applicable laws, including those enacted at a state or local level, are followed. Signed acknowledgments and liability waivers are also discussed, along with the reality that waivers are not enforceable in all states. An employer considering a mandate is urged to carefully evaluate its workplace and workforce (how it plans to address employees who have side effects after receiving the vaccine) and obtain legal counsel before adopting a mandatory vaccine policy.
• Strongly Encourage/Facilitate - The legal and employee risks drop (but do not disappear) when the vaccine decision is voluntary and left to the employee. Some companies are facilitating the process by arranging on-site inoculation. Others are initiating public relations campaigns, such as showing senior executives getting their shots.
• Strongly Encourage With Incentives/Rewards - Large and small employers alike are also offering financial incentives and rewards to employees who voluntarily get the vaccine.⁵ The most mentioned incentive is paid time off; some also add time off to recover from potential adverse effects. Gift cards and other financial rewards are also options. While incentives/rewards are favored by many companies, attorneys note legal risks arise if treating non-vaccinated employees differently (particularly where employees refuse the vaccine for disability or religious reasons) and employment relations risks from trying to influence personal choice.
• Inform and Educate/No Encouragement - The “softest” position is to simply provide information to employees about the health and safety aspects of COVID‑19 and vaccines, and refrain from indicating any preference. However, we did not find much discussion of this approach being taken or its risks and benefits.

One theme woven through the law firm articles reviewed is the importance of open and full communication with employees about COVID/vaccine health and safety risks, and the policy adopted by the employer. Given divergent views on the necessity of vaccines, employee morale should be considered. Another theme is the need to tailor the vaccine policy to the type of business, risk profiles of employees and customers, and all applicable laws in the jurisdiction. Consistency is also stressed as to how a vaccine policy is applied and administered.

Finally, as you might expect, all the articles recommend employers obtain legal advice before adopting a position. The vaccine issues are complex, and there are multiple legal, health and employment risks associated with all the approaches. The vaccine question may not be the most challenging faced by employers to date, but it may be the one where expert legal help is most needed.⁶ If you have not sought legal counsel yet on COVID‑19-related employment questions, this is a good time to start.

Endnotes

1. Mandatory vaccine legislation has been pre-filed in about half a dozen states. See Seyfarth Shaw LLP newsletter, January 13, 2021, at https://www.laborandemploymentlawcounsel.com/2021/01/employers-mandating-the-covid-19-vaccine-for-temporary-workers-and-other-issues-for-employers-consideration.
2. SHRM, Majority of Employers Will Encourage, Not Require, COVID‑19 Vaccine: SHRM Research (Jan. 6, 2021) at https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/majority-of-employers-will-encourage-not-require-covid-19-vaccine-shrm-research.aspx.
3. “What You Should Know About COVID‑19 and the ADA, the Rehabilitation Act, and Other EEO Laws” at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Although pregnancy is not mentioned as an exception in the vaccine section, it may qualify as a disability and there is still uncertainty concerning pregnancy and vaccine effects; see EEOC guidance above as well as CDC materials at www.cdc.gov.
4. Dozens of relevant law firm articles are available online. Some helpful publications used for this blog include: Jones Day LLP, Legal and Practical Considerations for Employers Weighing COVID‑19 Vaccinations as a Condition of Continued Employment (Dec. 2020) at https://www.jonesday.com/en/insights/2020/12/legal-and-practical-considerations-for-employers-weighing-covid19-vaccination; Day Pitney LLP, EEOC Issues Guidance for Employers on COVID‑19 Vaccines, But Should Employers Mandate Vaccination? (Dec. 22, 2020) at https://www.daypitney.com/insights/publications/2020/12/22-eeoc-issues-guidance-for-employers-covid19; Davis, Wright, and Tremaine LLP, What An Employer Needs to Know About the COVID‑19 Vaccines; Mandates, Incentives, Accommodations and Other Considerations (Dec. 23, 2020) at https://www.dwt.com/blogs/employment-labor-and-benefits/2020/12/employer-covid-vaccines-mandates-incentives.
5. See Forbes, COVID Vaccination Incentives: the Risks and Rewards for Employers (Jan. 16, 2021) at https://www.forbes.com/sites/edwardsegal/2021/01/16/covid-vaccination-incentives-the-risks-and-rewards-for-employers/?sh=759ef35c2d5b.
6. For businesses with Employment Practices Liability Insurance (EPLI) policies, Risk Management Websites and Legal Hotlines can also provide some guidance.