While the U.S. Equal Employment Opportunity Commission (EEOC) has approved mandatory COVID-19 vaccination policies in the workplace, many employers are still wondering whether mandatory policies are right for their organization. In a recent webinar, members of our Labor and Employment Group, Jennifer Prozinski, Nick Reiter, and Janice Gregerson, addressed some of the issues employers should consider before implementing any vaccine policy. Below are summaries of the questions asked by the webinar attendees, along with answers from the presenters.
Q: May an employer require that all of its employees get the COVID-19 vaccine?
A: The short answer is yes, but there are two very important exceptions set out by the EEOC. The first exception is a disability, often a medical condition, that prevents the employee from being able to safely receive the vaccine. The second is a sincerely held religious belief or practice, the tenets of which prohibit vaccination. The EEOC has made clear, however, that an employer does not need to automatically accept an employee's claim in this regard and is allowed to ask questions to evaluate the sincerity of that religious belief or practice. Similarly, regarding a disability claim, an employer is allowed to evaluate the legitimacy of the medical issue. These kinds of verifications must be carefully considered. Once an employee has a verified disability or a sincerely held religious belief or practice that prevents the employee from getting vaccinated, the employer has an obligation to try to accommodate that employee, as long as the accommodation does not impose an undue hardship on the business.
Q: May an employer ask for proof of vaccination status?
A: Yes. Employers may ask employees for proof of vaccination status. Employers should keep in mind, however, that inquiries about vaccination status should be narrow. Merely asking "yes or no" about vaccination status will be considered a narrow inquiry in most situations. But if an employer goes on to ask the employee why they are not vaccinated, then that inquiry could potentially cross the line into eliciting medical or disability-related information. If the inquiry is necessary because of the employee's job duties, however, it may be acceptable to inquire further about why an employee is not vaccinated, but that type of inquiry should still be made in a confidential setting. Finally, any information about vaccination status that an employer elicits should be kept confidential and only shared on a need-to-know basis.
Q: Can employers ask for applicants' vaccination status?
A: Yes, but asking applicants about vaccination status is not without risk. Per the above, the vaccination inquiry may result in the disclosure of disability-related information. If that happens and the applicant is not hired, the applicant may allege that his or her disability was the reason for rejecting their job application. That fact pattern can lead to a costly disability discrimination claim. To guard against this risk, we generally recommend that an employer ask for proof of vaccination only after a conditional job offer is made.
Q: If an employer states that "a vaccine is required" as a pre-condition of employment in New York, can the employer confirm that no paid time off to get a vaccination is due to the future employee?
A: New York Labor Law Section 196-C requires employers to provide up to four hours of paid leave per vaccine injection to each "employee." A prospective employee is not an employee. Therefore, paid time off is not required for a prospective employee who receives a vaccine before employment begins, even if the prospective employer requires vaccinations as a condition of future employment. As a reminder, however, if vaccination is a condition of being hired, we recommend the employer require proof of vaccination after extending a conditional offer of employment.
Q: What if an employee refuses to be vaccinated?
A: As stated above, an employee can be exempted from vaccine requirements if they have a proven disability or sincerely held religious belief, but under the law there is no requirement to accommodate employees who otherwise feel uncomfortable about receiving the vaccine. There is no provision under the EEOC guidance that allows an employee to refuse to be vaccinated because they have a "personal objection." So, unless an employee meets at least one of the two acceptable criteria for exemption, their employer may be able to terminate the relationship for refusal to comply with the vaccination policy.
Q: What if an employee insists on working remotely?
A: Most workers in the U.S. are at-will employees, and under such an arrangement either party – employer or employee – can terminate the employment relationship at any time, for any reason that's not illegal under law, with or without notice. What that means in this situation is that if an at-will employee refuses to come back to the worksite, the employer can insist that the employee return or lose their job – but only as long as the employee does not have a legally protected right to work remotely. At-will employees generally do not have the right to insist on working remotely unless: (1) remote work would be a reasonable accommodation for the employee's disability; or (2) the employee has a sincerely held religious belief that prevents vaccination and the employee may not safely return to the worksite without being vaccinated. Employers should also be mindful of whether the employee's primary job duties may be performed remotely and whether the employer has permitted similarly situated employees to work remotely in other instances. Slide 12 of the webinar presentation slide deck provides further information relevant to this question.
Q: Is it all right to have different vaccine policies for different classes of employees?
A: While the technical answer is yes, it is strongly recommended that any differentiation be tied to a business purpose in order to avoid accusations of discrimination or disparate treatment. It would not be advisable, for instance, to have an optional vaccination policy for managers and a mandatory vaccination policy for non-managers. At best, such a policy would lead to low workplace morale; at worst, it could give rise to discrimination claims. But where there is a legitimate business reason – for instance, a business might have employees who work exclusively remotely as well as employees who work front of house – having different policies for these different classifications of workers could be permitted.
Q: Can health services/HR disclose to managers the identity of employees who are exempt from routine testing because they are vaccinated?
A: Yes, if your organization has a policy under which vaccinated employees will be exempt from certain requirements, you can and should inform the managers responsible for overseeing those requirements of the identity of the exempt employees. However, you should refrain from providing additional information about the exemption, for example, advising the manager that the employee is exempt because they have a particular health condition.
Q: How would an employer implement policies to ensure that non-managerial and non-HR staff do not share information regarding colleagues' vaccination status that they learned through ordinary conversations?
A: In practice, it likely would be difficult to implement and enforce a policy that prohibits non-managerial and non-HR employees from discussing a co-worker's vaccination status. That said, as part of an office reopening statement, whether distributed by email or by the head of the organization, it would be prudent to stress that an employee's decision whether to be vaccinated is a personal choice that should be respected, and, accordingly, that the organization expects all employees to refrain from discussing the vaccination status of their co-workers.
Q: If an employer does not have a mandatory vaccine policy, what is their obligation to employees who have a high-risk family member at home if they must work alongside employees who refuse to be vaccinated?
A: At a minimum, COVID-19 protocols that reflect applicable federal, state, and local guidance should be implemented. Often, the guidance addresses situations where there is a mix of vaccinated and unvaccinated individuals that can be incorporated in the protocols. Additionally, employees with a high-risk family member at home may be eligible for leave pursuant to the American Rescue Plan Act, the Families First Coronavirus Response Act, the Family Medical Leave Act, or other COVID-19 leave under applicable state or local laws.
Q: How does the unionized status of some of the employees affect the employer's right to require vaccination?
A: Under the National Labor Relations Act, an employer must negotiate with an employee's designated collective bargaining representative (e.g., a union) before implementing a new policy that affects the terms and conditions of employment. Therefore, if an employer has unionized employees and wants to implement a mandatory vaccination policy, the employer very likely must first negotiate with the union before the policy takes effect. If the union refuses to negotiate or the employer and the union reach an impasse during negotiations, the employer may be able to implement its mandatory vaccination policy, notwithstanding the lack of an agreement with the union.
Q: If an employer that does not have a mandatory vaccine policy has a customer that requires employees who provide on-site services to be vaccinated, does the customer have a duty to accommodate the employer's employees who cannot become vaccinated because of a disability or sincerely held religious belief or practice, absent an undue hardship?
A: No, but there are several important caveats. First, depending upon the employer-customer relationship, the employer and customer may be considered joint employers of the employees. If that is the case, then the customer may have a duty to accommodate an employee's disability or sincerely held religious belief or practice. Second, if the customer is a place of public accommodation (e.g., a restaurant, bank, or retail store), it may still need to make its premises accessible to individuals with disabilities. Those two considerations aside, the customer's requirement for its vendors – the employer in this instance – is typically an arm's-length transaction under which the customer is allowed to establish terms and conditions for the business relationship, including the vaccination status of service providers. And the employer in this situation may have a duty to accommodate the employees who cannot become vaccinated, irrespective of the customer's lack of obligation.
Q: How much is too much for a one-time vaccine bonus?
A: There is no bright-line rule for what constitutes a "coercive" incentive. Many employers are keeping the value of the incentive below $100. To mitigate disparate treatment risk, we recommend providing an alternative method by which employees can receive the incentive, even if they are unable to be vaccinated because of a medical condition or a sincerely held religious belief or practice. For example, a possible alternative could be to allow employees who are unable to receive the vaccine to attend a COVID-19 safety training program in lieu of vaccination.
Q: What religions have proved to actually meet the standard for a religious exemption?
A: One of the most common religions that often meets the standard for a religious exemption in the vaccine context is Christian Science, or variations on the same, where the religious belief prevents the individual from receiving any medical intervention at all. The question for the exemption is not only what the religious belief proscribes, but also whether the employee actually adheres to that belief. For example, if an employee alleges he or she has practiced Christian Science for the last five years, but the same employee received a rubella vaccination two years ago, that could raise an issue about the sincerity of the employee's alleged religious beliefs.
Q: What documentation should we require to prove a "sincerely held religious" belief? May an employer ask the employee who claims a sincerely held religious belief for confirmation, such as a letter from their pastor or spiritual advisor explaining the (alleged) belief?
A: At the outset, an employer should ask the employee to describe, in writing, the religious belief at issue and how it impacts or affects their ability to receive the COVID-19 vaccine. Some employees choose to submit documentation from their religious or faith leaders, but an employer will still need to assess how sincerely held the religious belief is for the employee. For example, if an employee asserts that their religious belief prevents them from receiving medical intervention at all, but the employee still uses antibiotics when they have an infection, that would indicate that though the religious belief prevents medical intervention, the employee does not actually follow that belief in their regular, day-to-day life. In some situations, an employer may want to consider inquiring about prior vaccination history. If an employee has previously received other vaccines, that may call into question the sincerity of the employee's religious belief.
Q: What about policies for employees for short-term seasonal events, like counselors for a 2-week camp?
A: With a short-term/seasonal event, it is tricky to have enough time to meaningfully go through the interactive process for potentially accommodating a disability. One approach to take is to treat all such exemption requests as though they are valid – i.e., that the individual has a sincerely held religious belief that warrants exemption or has a medical condition that prevents them from receiving the vaccine. An employer can then offer the employee a predetermined list of accommodations to choose from, such as extra PPE or a requirement to participate in additional testing. An employer could even offer the employee an unpaid leave and opportunity to return for the next session. By still offering accommodations, an employer will mitigate the risk of being accused of disparate treatment.
Q: Are there employer obligations to volunteers under a mandatory vaccination policy?
A: Employers may maintain a mandatory vaccination policy for volunteers. Assuming the volunteers are classified correctly (i.e., they are not employees), the volunteers generally do not have standing under employment laws, including the Americans with Disabilities Act and Title VII. However, employers are free to implement an accommodations request process for volunteers.
As the situation evolves, so does the guidance. Any policy or mandate should be individually and carefully considered to ensure EEOC compliance.
This document is for general informational purposes only and does not represent and is not intended to provide legal advice or opinion and should not be relied on as such. Legal advice can be provided only in response to specific fact situations.
This document does not represent any undertaking to keep recipients advised as to all or any relevant legal developments.