SCM NEWS & OPINIONS

Re-Opening After the Pandemic: Employer Vaccination Policy Considerations

Contact: Rachel E. Phillips or Nathan R. Skeen

On March 24th, all Utahns over the age of 16 became eligible to receive the COVID-19 vaccine. Governor Cox has also recently signed a bill that will lift Utah’s statewide mask mandate on April 10th. With that, employers may wonder how they should handle vaccinations and employees.

One threshold question is whether an employer can require its employees to get the vaccine? The answer is likely yes, with some exceptions. Because of the at-will nature of many private employees, an employer (or the employee) can terminate the employment at any time for any lawful reason. This would likely include failure to receive the COVID vaccine if it is contrary to the employer’s policy. However, employers should be aware of some risks associated with adopting a policy that requires employees to receive the vaccine before returning to the office.

Mandating employees to get the vaccine might expose the employer to various forms of liability and legal challenges. For instance, an employee recently filed a lawsuit challenging an employer’s vaccine mandate. The employee voiced concerns that the FDA’s approval of the COVID-19 vaccine has been used under its Emergency Use Authorization and not the standard approval process. An employer might also be potentially liable if it mandates getting the vaccine and an employee suffers adverse reactions. Conversely, there could be OSHA-related concerns if the employer does not mandate the vaccine before returning to work. An employee could argue that failing to do so violates the requirement that the workplace be “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

There are other legal implications of mandating vaccination under federal laws such as the Americans with Disabilities Act of 1990 (“ADA”) and Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (“EEOC”) has provided some guidance on these issues. It clarified that requiring an employee to show proof of vaccination is not a disability-related inquiry. But, subsequent questions like why the person did not get the vaccination might elicit information about a disability and fall under ADA protections. If an employer chooses to require employees to provide proof of vaccination, it will be helpful to remind the employees not to provide any other medical information as part of the proof to avoid implicating the ADA or similar laws.

The EEOC has also provided guidance on how employers should respond to employees who indicate they are unable to receive the vaccine because of a disability. The ADA allows an employer to have a qualification standard that an employee not pose a direct threat to the health or safety of others in the workplace. If an employer has concerns regarding an unvaccinated employee requesting ADA accommodations, the employer must show that the unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). The employer should conduct an individualized assessment to determine if a direct threat exists. It should also consider other reasonable accommodations such as continuing to work remotely or in a different location.

Similar concerns may arise for employees who are unable to receive the vaccine for religious reasons. The employer should try to make reasonable accommodations unless it would impose an “undue hardship” under Title VII.

Remember that just because an employer can require employees to get vaccinated, it does not mean it is the best option to do so. Employers can engage in an open discussion with employees about the issue, or even take a poll to see how employees would feel about a mandate or certain workplace restrictions. Employers might also choose to encourage, rather than mandate, receiving the vaccination. This can include developing vaccination education programs, facilitating vaccine access, providing paid time off for employees to get the vaccine, and providing incentives for those who do get vaccinated.

Employers should consider the best interests of the business and the employees before enacting any official policies. Depending on the culture and values of the business, the needs and best practices will likely vary between employers. Consulting with an attorney may help you to make the decision for your business.

Should you have any questions about this topic or need legal representation please contact Rachel E. Phillips or Nathan R. Skeen.