Ever since the arrival of COVID-19 vaccines, private employers across the U.S. have grappled with whether to mandate vaccines for employees. Some businesses have implemented employee vaccine requirements as another tool to provide a safe workplace and combat the spread of COVID-19. Other employers have shied away from mandates out of concern that they would suffer mass resignations. In recent weeks, the federal government has weighed in, requiring that certain private employers mandate vaccines for employees in short order.
Pursuant to President Biden’s September 9, 2021, Executive Order (EO) 14042, businesses with covered federal contracts should ensure that workers are fully vaccinated by December 8, 2021, unless the employee is legally entitled to an accommodation. The EO vaccine requirement applies not just to those employees who provide services in connection with the government contract, but also to employees who share a worksite or otherwise have contact with employees working on the contracted-for services. Meanwhile, on September 10, 2021, President Biden directed that the Occupational Safety and Health Administration develop an emergency temporary standard (ETS) requiring that private employers with 100 or more employees ensure that employees are either vaccinated or undergo weekly COVID-19 testing. On October 12, 2021, OSHA sent a draft of the ETS to the White House for approval. OSHA may issue the ETS any day now.
Employers that have implemented vaccine mandates for their employees (or who will do so once OSHA issues the ETS) should comply with applicable federal, state and local laws and regulations, and follow guidance from the Equal Employment Opportunity Commission, Centers for Disease Control and Prevention, OSHA and other applicable regulators. A number of employment law considerations accompany vaccine mandates, including the following:
- Potential accommodations for employees. Pursuant to the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 (Title VII), and any applicable state and local law, employers may need to consider accommodations for employees who request an exemption from a vaccine mandate due to a bona fide medical condition or a sincerely held religious belief.
- Title VII and the ADA require employers to engage in an interactive process with employees to determine if there is a reasonable accommodation that would not pose an undue hardship to the employer. The EEOC offers guidance on the potential undue hardship factors an employer may consider in denying a request for a disability or religious accommodation, including that that the accommodation would pose a health and safety risk or would be too costly.
- Religious exemption requests present a complicated issue, as it is difficult to know the sincerity (or not) of an individual’s religious beliefs, and challenging one’s sincerity too strenuously can present legal risk. The EEOC cautions employers to generally assume that an employee’s request for a religious accommodation is made in good faith. That said, according to the EEOC, an employer is permitted to question the sincerity of an employee’s asserted religious belief where an employer has an objective basis for doing so, such as where (i) the employee has engaged in other conduct that is inconsistent with the claimed religious belief, (ii) the employee previously requested a vaccine exemption for nonreligious reasons, or (iii) the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
- Wage and hour: Employers, pursuant to applicable state or local law, may be required to provide paid or unpaid leave for employees to receive the vaccine and to recover from any side effects.
- Proof of vaccination and recordkeeping: EEOC guidance provides that employers may require that employees provide proof of COVID-19 vaccination. State and local laws vary on the form of proof required. In most jurisdictions, it is sufficient for an employee to provide a copy of the CDC vaccination card or other paper record from the vaccine provider that indicates the date(s) of the vaccine. Employers may wish to warn employees not to provide other medical information when providing proof of vaccination status. Employers should maintain records of employee vaccination status confidential and separate from the employee’s personnel file.
- Labor-Management Relations: Employers with unionized employees may be required to bargain with the union(s) concerning vaccine mandates and related aspects of such a mandate.
The OSHA ETS may further clarify employer and employee rights and obligations with respect to vaccines. Employers that are not federal contractors or subcontractors, or that are not otherwise subject to the forthcoming OSHA ETS, may still elect to institute employee vaccine mandates, subject to applicable law. Such businesses have developed varying approaches to employee COVID- 19 vaccines that best meet the needs of their workforce and customers. Some companies have required vaccines solely for employees who are customer-facing. Others have instituted employee mandates in certain locations. Employers that elect to mandate vaccines for certain employees must be mindful not to run afoul of Title VII and other employment discrimination laws.
We should expect continued legal challenges to government-ordered employee vaccine mandates, as well as to mandates that employers have voluntarily instituted. To date, courts generally have upheld vaccine mandates as a tool to satisfy employers’ obligation to provide a healthy and safe working environment pursuant to OSHA regulations and other state and local laws. That said, some courts have taken issue with employer mandates where businesses have not expressly offered or otherwise adequately considered potential reasonable accommodations for employees who may qualify for an exemption from the vaccine for bona fide medical reasons or sincerely held religious beliefs. Meanwhile, some states, such as Montana and Texas, have passed laws or issued executive orders that ban or otherwise limit employee vaccine mandates, setting up potential litigation over whether the federal EO and the forthcoming ETS preempts state law.
One thing remains certain when it comes to vaccine mandates: Employers should remain vigilant in light of ever-changing health and safety federal, state and local laws and regulations.