According to the Centers for Disease Control and Prevention (CDC), the United States had administered more than 190 million doses of COVID-19 vaccines as of mid-April this year. After more than a year of stay-at-home orders and remote work, many employers and employees are looking forward to returning to work dynamics that more closely resemble pre-COVID times.
Even with more than a third of the population at least partially vaccinated, employers looking to re-open their doors will face challenges for several months to come. For employers, a key consideration for returning to in-person duty is the percentage of your workforce that's fully vaccinated. Ideally, this would be 100 percent. However, we don't have enough doses to go around yet. And even if we had the necessary supply, there’s a significant number of people who don’t want the vaccination for various reasons.
As the light at the end of the tunnel shines brighter, many companies are contemplating making the COVID-19 vaccine mandatory. This naturally begs the question: would that even be legal?
To answer that, we invited attorney Allen Chong of the Chong Legal Group to participate in our Risk Control Webinar series. Chong has spent much of his 20-plus year career specializing in workers’ compensation (WC) litigation, representing several companies that belong to a group captive that works with Captive Resources (CRI). Below is a recap of Chong’s presentation focused on the legal ramifications of making the COVID-19 vaccine mandatory.
Important note: Many of the issues around this topic are subject to local and state laws. Chong warned attendees to consult subject-matter specialists knowledgeable of the laws in your state, county, and city levels before implementing any of the strategies he discussed.
According to Chong, the answer is Yes… maybe.
“The Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that vaccine mandates are lawful, provided there are carve-outs for certain classes of individuals,” said Chong.
Even with extensive guidance from the EEOC on an employer’s right to make the COVID-19 vaccine mandatory, Chong’s equivocation here is important.
“The reason I say ‘maybe yes’ is because the courts may ultimately disagree with the EEOC, said Chong. “There is currently no legal precedent to support mandatory vaccination policy.”
According to Chong, there are several reasons an employee would be exempt from having to take the vaccine before returning to the workplace. Major exemptions include:
Per Title VII of the Civil Rights Act of 1964, employers can’t impose a COVID-19 vaccine mandate on employees with “sincerely held religious beliefs” that prevent them from complying.
Under the Americans with Disabilities Act, an employer must provide reasonable accommodations to employees who have an underlying disability that prevents them from being vaccinated.
If you decide to make the COVID-19 vaccine mandatory at your workplace, Chong offered three ways to determine when it's lawful to keep an uninoculated employee out of your workplace.
According to Chong, “employers must determine if the unvaccinated employee would pose a direct threat … to the health or safety of the individual or others” that can’t be addressed by reasonable accommodation.
Luckily for employers, the EEOC has made this step easy by determining that COVID-19 does meet the threshold to qualify as a direct threat.
Once you’ve determined an employee poses a direct threat, you need to find out if there are ways to accommodate their presence in the workplace without expelling them.
If there are no reasonable accommodations that would allow an unvaccinated employee to work onsite without posing a direct threat to others, then you can exclude them from the workplace. However, excluding an employee shouldn’t mean automatic termination. Chong stressed the importance of finding external accommodations that would allow the employee to perform their job's essential functions (e.g., working from home).
If you're wondering whether it would be worth the headaches that would come with making the COVID-19 vaccine mandatory for employees, Chong offered several business factors to consider:
According to Chong, the politicization of the pandemic and vaccine has created several social factors you should also consider. Here are some questions to consider before implementing a mandatory vaccine policy:
Chong offered two significant legal risks associated with making the COVID-19 vaccine mandatory:
All the COVID-19 vaccines have gone through an Emergency Use Authorization (EUA) by the Food and Drug Administration (FDA), rather than the standard, longer approval process. Because of the expedited approval process, the vaccines must be accompanied by information on the rights to refuse the drugs under EUA federal law. Therefore, any employee terminated for refusing the vaccine may have a valid Wrongful Termination claim.
If an employee has an adverse reaction to the vaccine, it may be considered a WC claim. While this risk certainly warrants alarm, Chong shared some facts on the efficacy of the COVID-19 vaccine that are worth noting here:
Chong concluded the legal-ramification portion of his presentation by answering a simple yet fundamental question: Can employers even ask if workers received the vaccination. The answer, according to Chong, is yes. But Chong stressed that you should limit the question to a simple "yes" or "no" answer as any inquiries into why or why not someone has received the vaccine could be deemed a disability related inquiry.
This presentation was part of CRI’s Risk Control Webinar Series — weekly installments of webinars to educate the group captive members we work with on topics like workplace safety, organizational leadership, and company performance. The thoughts and opinions expressed in these webinars are those of the presenters and do not necessarily reflect CRI’s positions on any of the above topics.