EXECUTIVE SUMMARY

The COVID-19 vaccine raises several legal concerns for healthcare employers. It might not be wise to mandate vaccination for employees yet.

  • Many healthcare employees have expressed skepticism about the vaccine.
  • The emergency use authorization provides employees with a right of refusal.
  • Labor unions should be involved with planning for vaccine programs.

As the rollout of the COVID-19 vaccines continues, healthcare employers face complicated questions about what they can require of employees, how to handle employees who refuse the vaccine, and other potential legal consequences that may result in the coming months.

In December 2020, the Food and Drug Administration (FDA) granted emergency use authorizations (EUAs) for COVID-19 vaccines from Pfizer/BioNTech and Moderna. Distribution of the vaccines began throughout the country with the first doses going to frontline healthcare workers and long-term care residents at skilled nursing and assisted living facilities.

A survey by the American Nurses Foundation revealed only 34% of those surveyed said they would voluntarily take a vaccine if it were not required by the employer. Another 36% said they would not take it, and 31% were unsure. The main reason cited for not taking the vaccine was concern that it was developed too quickly.1

Employers should be prepared for the issues that will arise relative to their employees and the COVID-19 vaccine, says Timothy J. Ford, JD, a partner with Einhorn, Barbarito, Frost & Botwinick in Denville, NJ.

“A common question is whether a healthcare employer can require employees to be vaccinated. The answer is generally yes, but with caveats,” says Ford.

The Equal Employment Opportunity Commission (EEOC) recently issued guidance indicating employers may mandate the vaccine, subject to some exceptions. The EEOC emphasizes employers should remember that “guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”2 (See the story in this issue for more information on the EEOC guidance.)

Throughout the pandemic, EEOC has characterized COVID-19 as a “direct threat,” which is defined as “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.”2

“If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA [Americans with Disabilities Act]. With the vaccine in distribution, it is possible for employers to require employees to be vaccinated in order to work or to return to work if the failure to vaccinate will result in a direct threat to other employees,” Ford says.

However, as the Pfizer and Moderna vaccines have only received EUAs and not full approval, Ford advises employers to wait until the FDA expands authorization to its standard approval before requiring vaccination.

“Although employers will likely be permitted to mandate the vaccine, that does not necessarily mean an employer should,” Ford notes. “The vaccine is in its early stages. Until the vaccine is more widely accepted by the FDA and by society at large, employers that try to mandate the vaccine for their employees may potentially face legal challenges. Another significant aspect of this issue involves the employment agreements and/or policies, as those will need to be reviewed and amended to account for the vaccination so that enforcement is uniform.”

ADA Exemptions Apply

The EEOC has stated employees may be exempt from a mandatory vaccine if the employee has a covered disability under the ADA that prevents him or her from taking the vaccine, Ford notes. Under the ADA, employers must provide a reasonable accommodation to any employee with a covered disability that prevents them from receiving the vaccine.

Employers are not required to provide a reasonable accommodation if none is available, if the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others, Ford explains.

In addition, an employee may be excused from the vaccine requirement under the religious accommodation provision of Title VII of the Civil Rights Act of 1964, Ford says. Employees must notify employers of sincerely held religious beliefs that prevent them from receiving the vaccine.

“By not requiring a vaccination, some might believe that the employer is failing to provide a safe working environment under the Occupational Safety and Health Act,” Ford says. “However, there is no precedent for such a result. If your business is in healthcare or senior housing, there may be liability if the vaccination is not mandated.”

The cost of the vaccines is covered by the federal government, Ford notes. However, there may be administrative fees or other costs. If there are costs that are not covered by insurance, employers should strongly consider covering any costs, Ford says, particularly if mandated under the company’s employment policies. Employers also are strongly advised to pay employees for the time to travel to and from the vaccination location.

If an employee refuses the vaccine, the employer may have options that include termination, Ford says. In at-will employment states, employees can be terminated for any nondiscriminatory and nonretaliatory reason. Employers may terminate an employee for refusal to fulfill the requirements of his or her position and/or failure to be present at work. Refusing to take the vaccine could qualify for those reasons, Ford says.

However, if an employee has a recognized disability that would affect his or her ability to return to work in an environment with unvaccinated co-workers, state laws may require reasonable accommodation, Ford says. One of these accommodations may include remote work.

“The COVID-19 vaccination is a starting point in stopping the pandemic, but it is unchartered territory for employers,” Ford says. “Employers can expect further guidance from their states and the EEOC. This is an evolving area of the law with many variables, and as such, prior to implementing any COVID-19 vaccination policies, employers should consult with counsel.”

EUA Makes a Difference

Healthcare employers already have experience dealing with employees who refuse to take flu vaccines, notes Jennifer L. Curry, JD, shareholder with Baker Donelson in Baltimore. Many of the same issues will arise with the COVID-19 vaccine, she says.

The EUA aspect makes a difference. FDA regulations suggest an EUA vaccine or treatment cannot be mandated, Curry says. Employees must have the right to refuse the vaccination. (For more on EUA, see the story in this issue.)

“There is not necessarily a consensus on this, but my reading of the FDA regulations is that an individual cannot be required to receive a vaccine approved under the EUA,” she says. “Once the vaccine is fully approved by the FDA, which I expect to happen, it is possible to mandate it. My recommendation would be strongly encouraging people to get it, but mandating it is not a good idea at this point and is not supported by law.”

Curry notes healthcare employers should continue COVID-19 precautions, such as personal protective equipment (PPE) use and social distancing, even as employees receive the vaccine. If the vaccines are fully approved and the employer mandates vaccination, the program should include plans for accommodating those employees who cannot take the vaccine for health or religious reasons protected by the ADA, Curry says. That may include additional PPE, changing shifts, or reassignment to other tasks.

“If these accommodations are not enough, the employer may have to allow the employee to take leave, for example, until it is safe to go back to work unvaccinated,” Curry says. “The same would apply to someone with religious claims, though employers are not required to do anything that would create an undue hardship for them. If you have a nurse who doesn’t want the vaccine but doesn’t have a health or religious exemption, there may not be many positions that person could fill at the same pay rate, so it might be an undue burden to allow them stay on even though they can’t perform their nursing duties.”

Curry points out the protected health or religious exemptions do not extend to general skepticism of the vaccine, or political beliefs. “If someone is generally antivaccination, whether as a social or political belief, that is not protected under the law. Once it is possible to mandate vaccination, the employer can choose what to do with that person based on his or her refusal.”

Discuss Claims of Exemption

Religious objections also require proof, says Jill M. Lashay, JD, shareholder with Buchanan Ingersoll & Rooney in Harrisburg, PA. Simply saying the words “religious objection” may not be enough. A physical disability also requires proof.

“Once the employee says he or she has a religious objection or a physical condition that prevents taking the vaccine, the employer has the right under the law to determine if it would be an undue hardship to accommodate this person,” Lashay explains. “They have to engage in a dialogue about this so the employer understands the basis of the objections and can make an informed decision about accommodation.”

Lashay says she is hearing considerable concern from employees about whether they can be forced to take the COVID-19 vaccine, consistent with the American Nurses Foundation survey results.

“We are hearing about pushback. I would anticipate that a lot of people who are uncertain about it will go to their physician and say they have some chronic pre-existing condition and it’s not safe to get the vaccine,” she says. “The religious objection could be part of an established, well-known religious faith, or the law says it also can simply be a sincerely held belief that constitutes a religion for the individual.”

Avoid Discrimination Claims

If a healthcare employer decides to mandate the COVID-19 vaccine, it must have “evenhanded, across-the-board requirements and repercussions” to avoid discrimination claims, says Jill K. Luft, JD, officer with Greensfelder, Hemker & Gale in St. Louis. Risk managers also must work to avoid any violation of the National Labor Relations Act, which prohibits employers from taking disciplinary action against employees who engage in protected, concerted activity regarding conditions in the workplace.

If a person is harmed by a required vaccination, that would result in a workers’ compensation claim, Luft notes.

“There are other practical considerations, such as the fact that it’s a two-shot series and many people report feeling fatigued afterward. You may have to consider the possibility of having multiple employees out of work if you are doing a mass vaccination program,” she says. “If a lot of your top performers or a big group of employees refuse to take it, what are you going to do? Are you going to lose a big chunk of your workforce?”

The flip side is that some employees may expect the employer to mandate the vaccine, she notes. Some hospitals are adopting plans to incentivize COVID-19 vaccination with paid days off after each of the two shots, gift cards, and other rewards in the vein of existing wellness programs, she says.

Union leaders should be involved in any plan for providing or mandating vaccines, notes Devjani H. Mishra, JD, shareholder with Littler in New York City.

“If union representation is not on board with something that can represent a fairly significant change, that can really affect the uptake and success of the program,” she says. “We also are hearing questions about pay because there is some down time associated with getting the vaccine. Especially for hourly employees, there are questions about how that should be handled.”

If the employer requires the vaccination, there will be more expectation that any time away from work for the actual injection and down time from side effects will be compensated by the employer, Mishra says.

An employee who cannot receive or refuses to take the vaccine might still be able to work in his or her usual role, Mishra says. The same PPE and infection control processes that were in place before the vaccine likely will continue for some time and will be just as valid. If a risk assessment determines the employee can perform duties with relative safety with the use of those precautions, that might be a reasonable compromise, she says.

“There are some positions in which the employee’s work is 100% patient-facing, creating concerns for both the patient and employee. But in other roles, it might be that continuing with PPE is a sufficient mitigation to the employee not being vaccinated,” Mishra says. “The key will be for employers to consider each situation in a detailed way, because the EEOC is taking the position that terminating someone is the option of last resort. Employers should be looking at what other options exist.”

Mishra also notes that if the healthcare employer is providing the vaccine to employees or others, there are substantial recordkeeping and reporting requirements for an EUA vaccine. Risk managers and compliance officers should ensure those requirements are met.

Employers are in a difficult position if employees refuse vaccination for a documented medical reason or a sincerely held religious objection, says David T. Azrin, JD, partner with Gallet Dreyer & Berkey in New York City. In either case, the employer is obligated to make a reasonable accommodation that would allow the employee to continue working without taking the vaccine, while minimizing contact with others, Azrin says. That may include working from home or separating from other employees or patients, if such an accommodation is feasible.

“If no accommodation is possible without causing undue hardship or burden on the employer because, for example, the employee cannot work from home and must have direct contact with patients or co-workers, then the employer can terminate the employee for not taking the vaccine despite the objections,” Azrin says.

If an employer enacts a mandatory vaccine policy and does not allow an exception for medical or religious objections, the employer could be held liable for terminating employees with those objections, Azrin says. Employers who are found to have violated antidiscrimination laws can be held liable for the employee’s lost wages for the period it reasonably takes the employee to find a new position, damages for mental distress, and attorney’s fees, he explains.

“On the flip side, if an employer does not adopt a mandatory vaccination policy, and an employee who contracts the virus brings a claim against the employer on the theory that the employee was infected by a co-worker and that the employer failed to take adequate measures to prevent infection, such as mandatory vaccination policies, such a claim would likely be covered by the employer’s workers’ compensation insurance policy, which would provide a defense to the employer against the claim,” Azrin says. “The employee will have difficulty in prevailing on such a claim unless the employee can prove with some reasonable degree of certainty that he or she contracted the disease at work.”

If the employee does not demonstrate a valid medical or religious reason for not taking the vaccine, the employer can terminate an employee who refuses the vaccine, Azrin says. If the employee demonstrates a valid medical or religious reason, the employer must try to keep the employee by making reasonable accommodations to prevent the employee’s exposure to other colleagues or patients. If this is not feasible without causing undue hardship, the employer can terminate the employee despite the medical or religious objections, he says.

“If the employee is a member of a union, the collective bargaining agreement negotiated by the union with the employer may limit the circumstances under which the employer can terminate employees and might prevent the employer from terminating the employee for not taking the vaccine,” Azrin says. “If the collective bargaining agreement does not address the issue, such a policy would likely be considered an issue which the employer is legally obligated to negotiate with the union before implementing such a policy.”

Because the situation is fluid, healthcare employers should monitor any new legislation or regulations, Azrin advises. If the pandemic worsens, and if vaccinations become more widely available and accepted, it is possible the legislature or government agencies might mandate vaccinations.

Some Vaccines Required

New York Public Health Law, and the laws of 15 other states, require all healthcare workers receive the measles, mumps, and rubella vaccine as a condition for their employment, and for public school students, Ford notes. In November 2020, the New York State Bar Association adopted a resolution urging the legislature to consider enacting mandatory COVID-19 vaccine policies if the pandemic cannot be controlled by other means and the vaccine is considered safe.3

“It is also possible that the Occupational Safety and Health Administration [OSHA] may issue further guidance on this issue. Currently, the OSHA worker safety regulations do not require employers to mandate vaccinations to protect employee safety, even for healthcare workers,” Ford says. “Historically, OSHA has generally not issued vaccination mandates for healthcare workers for other similar diseases, such as the H1N1 influenza. But if the situation worsens and vaccines are proven safe and effective, OSHA could decide to issue regulations mandating vaccinations to protect employee safety, in which case employers would be legally obligated to require vaccinations.”

Employers who mandate or administer a COVID-19 vaccine before employees return to work should be afforded liability protection under the Public Readiness and Emergency Preparedness Act (PREP Act), says Erin S. Whaley, JD, partner with Troutman Pepper in Richmond, VA. The Department of Health and Human Services amended the PREP Act in December 2020 to include provisions specific to COVID-19.4

The PREP Act should provide protection if the employer acts in accordance with its provisions and other appropriate guidance, Whaley says. If the CDC issues guidance recommending the vaccine, an employer’s refusal to follow such guidance will not necessarily result in liability.

“Typically, state and local agencies and health departments have authority to enforce more or less restrictive requirements within their jurisdiction, which can result in conflicts between federal, state, local, and city requirements. For example, while the CDC may recommend the vaccine, certain states or localities may prohibit vaccination mandates, or limit such mandates to certain industries,” Whaley explains. “Employers also should monitor guidance from relevant government agencies like the EEOC and OSHA.”

Richard Gerakitis, JD, partner with Troutman Pepper in Atlanta, notes that although an employer may require employees to receive the COVID-19 vaccine to return to the office, telework or mask-wearing may constitute an appropriate and effective accommodation for certain positions.

Gerakitis cautions against using any EEOC-protected distinctions when determining work arrangements, such as avoiding those with health or religious objections to the COVID-19 vaccine.

“Regardless of whether a vaccine is required, as the EEOC recently confirmed, employers should avoid selecting individuals for return to work in the office or telework based on protected categories,” he notes.

REFERENCES

  1. American Nurses Foundation. Pulse on the nation’s nurses COVID-19 survey series: COVID-19 vaccine. October 2020. https://www.nursingworld.org/practice-policy/work-environment/health-safety/disaster-preparedness/coronavirus/what-you-need-to-know/covid-19-vaccine-survey/
  2. Equal Employment Opportunity Commission. What you should know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. Updated Dec. 16, 2020. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
  3. DeSantis S. New York State Bar Association calls upon state to consider mandating a safe and effective vaccine if voluntary measures fail to protect public health. New York State Bar Association. Nov. 7, 2020. https://nysba.org/new-york-state-bar-association-calls-upon-state-to-consider-mandating-a-safe-and-effective-vaccine-if-voluntary-measures-fail-to-protect-public-health/
  4. Department of Health and Human Services. HHS amends PREP Act declaration, including to expand access to COVID-19 countermeasures via telehealth. Dec. 3, 2020. https://www.hhs.gov/about/news/2020/12/03/hhs-amends-prep-act-declaration-including-expand-access-covid-19-countermeasures-telehealth.html

SOURCES

  • David T. Azrin, JD, Partner, Gallet Dreyer & Berkey, New York City. Phone: (212) 935-3131. Email: dta@gdblaw.com.
  • Jennifer L. Curry, JD, Shareholder, Baker Donelson, Baltimore. Phone: (410) 862-1183. Email: jcurry@bakerdonelson.com.
  • Timothy J. Ford, JD, Partner, Einhorn, Barbarito, Frost & Botwinick, Denville, NJ. Phone: (973) 586-4940. Email: tford@einhornlawyers.com.
  • Richard Gerakitis, JD, Partner, Troutman Pepper, Atlanta. Phone: (404) 885-3328. Email: richard.gerakitis@troutman.com.
  • Jill M. Lashay, JD, Shareholder, Buchanan Ingersoll & Rooney, Harrisburg, PA. Phone: (717) 237-4856. Email: jill.lashay@bipc.com.
  • Jill K. Luft, JD, Officer, Greensfelder, Hemker & Gale, St. Louis. Phone: (314) 516-2653. Email: jluft@greensfelder.com.
  • Devjani H. Mishra, JD, Shareholder, Littler, New York City. Phone: (212) 497-8462.
  • Erin S. Whaley, JD, Partner, Troutman Pepper, Richmond, VA. Phone: (804) 697-1389. Email: erin.whaley@troutman.com.