The COVID-19 Vaccine Rollout: What Employers Need To Know

• Published date: 13 August 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Akin Gump Strauss Hauer & Feld LLP
• Author: Akin Gump Strauss Hauer & Feld LLP

Key Points

• To account for legal developments since our last FAQ concerning employer COVID-19 vaccination policies, we provide updated answers to questions and address additional questions about discrimination wage and hour, collective bargaining, safety, privacy and general liability considerations, and offer recommendations for employee vaccination programs.
• In particular, we discuss recent guidance and opinions from the Equal Employment Opportunity Commission, the U.S. Department of Labor and the U.S. Department of Justice on various topics.

With widespread vaccine eligibility and availability in the United States, and COVID-19 case counts rising with the spread of the Delta variant of the SARS-CoV-2 virus, employers should consider whether a vaccination policy is right for their workplaces. Such policies implicate a broad range of employment laws and regulations. The following questions and answers reflect changes to regulations and updates to guidance from government agencies since the publication of our prior FAQ on April 6, 2021. We address many of the legal issues that employers should take into account as they evaluate the role of vaccinations in their return to office plans. Although we focus on federal law, employers should in all instances consider any applicable state and local laws as well. Likewise, employers considering a vaccination policy should consult with experienced counsel.

Mandatory Vaccinations and Discrimination Concerns

May private employers require employees to get vaccinated for COVID-19?

In most states, subject to exceptions under antidiscrimination laws, an employer's basic right to set the terms and conditions of employment at its workplace gives it the right to require that employees receive a COVID-19 vaccine as a condition of initial or continued employment.¹ The U.S. Department of Justice (DOJ) recently issued an opinion stating that the Food, Drug and Cosmetic Act does not prohibit employers from mandating vaccination for COVID-19, even while such vaccinations are available only through Emergency Use Authorizations (EUA).² Further, prior to the DOJ's opinion, a lawsuit challenging a mandatory vaccination program was dismissed by the U.S. District Court for the Southern District of Texas.³

States may impose their own restrictions, however. In May, Montana passed a law prohibiting employment discrimination based on a person's vaccination status,⁴ and Oregon prohibits certain private employers from mandating COVID-19 vaccinations as a condition of employment.⁵ A number of other states have issued executive orders or passed laws prohibiting businesses from requiring customers to prove that they are vaccinated in order to access services, but have stopped short of prohibiting private employers from mandating vaccination.⁶ Because the debate over these issues is ongoing at the state and local level, employers should assess recent legislative developments before implementing a mandatory vaccination policy in a particular jurisdiction.

In considering whether to implement a mandatory vaccination program, employers also must be mindful of the requirements of various discrimination laws that may require exceptions, such as the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, and similar state or local laws. These considerations are addressed below.

How does the Americans with Disabilities Act apply to vaccination policies?

Under the Americans with Disabilities Act (ADA), employers may only conduct medical examinations on employees, or ask employees questions that are likely to elicit disability-related information, where the exams or questioning are "job-related and consistent with business necessity."⁷ In guidance published in December 2020 and updated in May 2021, the Equal Employment Opportunity Commission (EEOC) stated that, although information about an employee's vaccine status is subject to the ADA's confidentiality requirements, asking employees whether they have been vaccinated, or requiring proof of vaccination, is not a medical examination within the meaning of the ADA.⁸ Therefore, the ADA does not generally preclude employers from implementing a vaccine mandate for its workforce.

Still, complications may arise to the extent that an employer were to provide vaccinations on-site or otherwise administer a vaccination program. In order to obtain a vaccine, employees need to answer screening questions for "contraindications" (i.e., medical conditions that increase the risk for a serious adverse reaction).⁹ According to the EEOC, while the fact that somebody has been vaccinated is not a medical inquiry, the pre-screening questions for obtaining the vaccine are medical inquiries. Therefore, if the employer is involved in administration of mandatory vaccines, the employer must be able to show that requiring employees to be vaccinated is job-related and supported by business necessity. To satisfy this standard, the EEOC's guidance states that the employer must have a "reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of [the employee] or others."¹⁰ To assess the threat, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

Additionally, an employer must engage in an interactive process with employees who claim that a disability prevents them from receiving the vaccine to explore accommodation alternatives to being vaccinated. For example, the EEOC believes that remote work may be a reasonable accommodation when a direct threat justifies a mandatory vaccination policy. Employers must likewise engage in an interactive process if a vaccinated employee requests an accommodation because they suffer from a disability that presents a heightened risk of severe illness from COVID-19 despite being vaccinated.

How does the Pregnancy Discrimination Act apply to vaccination of employees?

According to the Centers for Disease Control and Prevention (CDC), pregnant individuals are at increased risk for severe illness from COVID-19.¹¹ While there is limited data at this time about the safety of COVID-19 vaccines for people who are pregnant, recently leading experts in maternal health have been recommending that pregnant women become vaccinated.¹² Nonetheless, pregnant employees who are unwilling to receive the vaccine may seek an exception from a mandatory vaccination policy.

The federal Pregnancy Discrimination Act (PDA) generally forbids discrimination based on pregnancy with respect to any aspect of employment. This means that when an employer grants an exception to a policy for a nonpregnant employee who is similar to a pregnant employee in his or her inability to work, the employer must either grant the exception for the pregnant employee or have a legitimate and nondiscriminatory explanation for treating the pregnant employee less favorably. In the context of a mandatory vaccination policy, an employer should not treat pregnant employees less favorably than other employees seeking to be excused from a mandatory vaccine. Indeed, certain pregnancy-related medical conditions may qualify as disabilities under the ADA entitling the employee to a reasonable accommodation. The PDA does not require employers to treat pregnant employees more favorably, however. For example, if the employer is requiring employees with medical conditions to provide a health care provider's opinion before excusing them from the vaccine requirement, an employer may impose the same requirement on pregnant employees who do not wish to become vaccinated.

What if an employee objects to vaccination on religious grounds?

Employers may need to make exceptions to mandatory vaccination policies for employees with sincerely held religious beliefs that prevent them from being vaccinated. Title VII of the Civil Rights Act of 1964 and various state laws prohibit discrimination based on religion. This protection includes requiring employers to accommodate an employee's sincerely held religious beliefs, practices or observances. Applying this standard, the EEOC's guidance explains that an employee may be entitled to a reasonable accommodation that includes excusing the employee from a mandatory vaccine requirement due to religious objections.

The EEOC recommends that employers assume a request for...