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As COVID-19 vaccines become increasingly available, employers
may consider requiring that employees be vaccinated prior to
resuming or continuing in-person work. Guidance from the Equal
Employment Opportunity Commission (“EEOC”) indicates that
employers may require employees to get a vaccine under equal
employment opportunity (“EEO”) laws as long as employers
make exceptions for employees with disabilities or religious
beliefs that prevent them from receiving the vaccine, but many
states such as New York (discussed herein) are contemplating more
employee-protective legislation. In the midst of this legal
uncertainty, companies must also grapple with the reputational and
morale risks associated with requiring vaccinations. This
memorandum outlines liability risks employers should consider in
setting their own vaccine policies.
I. Federal Health Standards for At-Will Employees
Generally, employers can set health requirements for at-will
employment. At the federal level, the EEOC has long taken the
position that employers may require employees to receive a flu
vaccine but generally has recommended that employers encourage,
rather than require, vaccination.1 Similarly, the
Occupational Safety and Health Administration (“OSHA”)
noted in 2009 that employers may require employees receive the H1N1
vaccine, characterizing H1N1 as a “pandemic influenza
In many cases, employers may impose a vaccination requirement to
ensure employees do not pose a “direct threat” to the
health or safety of individuals in the workplace.3 A
direct threat is one that poses 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.”4 In determining whether a
particular employment situation presents a “direct
threat,” the employer must evaluate “the individual’s
present ability to safely perform the essential functions of the
job” as well as “(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.”5 The EEOC has found that the
COVID-19 pandemic meets the “direct threat” standard, but
that assessment may change as case numbers decrease in a particular
region.6 Notably, EEOC regulations provide that the
“direct threat” assessment must be based on “a
reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective
In establishing vaccine protocols, employers must also satisfy
applicable positions of the Americans with Disabilities Act (the
“ADA”)8 and Title VII of the Civil Rights Act
(“Title VII”).9 Specifically, under the ADA
and Title VII, employers must provide reasonable accommodations,
absent undue hardship, for those who cannot comply with a vaccine
requirement because of disabilities or sincerely held religious
beliefs.10 “A ‘reasonable accommodation’ is
a change in the work environment that allows an individual with a
disability to have an equal opportunity to apply for a job, perform
a job’s essential functions, or enjoy equal benefits and
privileges of employment.”11 “An accommodation
poses an ‘undue hardship’ if it results in significant
difficulty or expense for the employer, taking into account the
nature and cost of the accommodation, the resources available to
the employer, and the operation of the employer’s
business.”12 Accommodations could include
requiring, for example, the employee wear a mask and other personal
protective equipment (“PPE”) or work remotely. If the
direct threat cannot be reduced, the employee may be entitled to
continue to telework or take leave under the Families First
Coronavirus Response Act, Family and Medical Leave Act
(“FMLA”), or employer’s leave policies.13
If no other rights apply, the employer may terminate the
Finally, employers should ensure that any vaccine program,
whether mandatory or otherwise, complies with federal
anti-discrimination laws by ensuring that it does not treat
employees differently because of protected characteristics. For
example, under the Age Discrimination in Employment Act, employers
may not “limit, segregate, or classify” employees
“because of such individual’s age.”15
Similarly, employers should not single out employees they believe
may be at a higher risk for severe COVID-19 illness based on other
medical factors.16 Employers may classify
employees on the basis of job-related characteristics, however. For
example, employers could include customer-facing employees in a
mandatory vaccination policy while excluding employees who can work
remotely, so long as the policy allows for accommodations as
II. Recent Challenges to Vaccine Mandates
Notwithstanding the EEOC guidance, some commentators have argued
that employers may not mandate that employees receive a COVID-19
vaccination because the vaccines currently approved by the Food and
Drug Administration (“FDA”) have been approved through
its Emergency Use Authorization (“EUA”) process. The
subsection of the Federal Food, Drug, and Cosmetic Act that gives
the FDA the ability to grant EUAs requires that the Secretary of
Health and Human Services ensure individuals receiving the product
are informed “of the option to accept or refuse administration
of the product, [and] of the consequences, if any of refusing
administration.”17 However, the statute regulates
the actions of public officials, not private employers.
Plaintiffs in two recent lawsuits have challenged their
employers’ vaccine mandates on this basis, but in both cases
the plaintiffs were employed by public entities. In a lawsuit filed
in the District of New Mexico in February of 2021, an employee at
the Dona Ana County Detention Center challenged a “Mandatory
COVID-19 Vaccine Directive” requiring first responders to
receive a COVID-19 vaccination as a condition of ongoing
employment.18 The employee initially moved for, but then
withdrew, a motion seeking a temporary restraining order or
injunction preventing his termination. In March of 2021, teachers
and employees of the Los Angeles Unified School District brought a
similar suit challenging its vaccine mandate.19 The
plaintiffs also brought claims asserting their due process rights
had been violated and under California’s Protection of Human
Subjects in Medical Experimentation Act by subjecting them to
medical experimentation without consent.
The plaintiffs in both the California and New Mexico cases have
raised the argument that the law governing EUAs preempts state law
and does not permit the defendant employers to require vaccinations
where a vaccine has been authorized under an EUA.20
While both cases are still in the earliest stages, and indeed the
complaint has not yet been answered in either, this may be a
challenging argument for either set of plaintiffs. When analyzing
if a federal statute preempts state laws, courts apply the
“presumption against preemption” and require evidence
that preemption was “the clear and manifest purpose of
Congress.”21 Such purpose may be particularly
difficult to demonstrate given that the United States Centers for
Disease Control and Prevention (“CDC”) has stated that:
“whether a state, local government, or employer, for example,
may require or mandate COVID-19 vaccination is a matter of state or
other applicable law.”22
III. New York State Legislation Regarding Vaccine Mandates
New York state legislators have recently introduced several
bills addressing COVID-19 vaccinations. Assembly members David
DiPietro, Karl Brabenec, and Brian Maktelow have proposed A4602,
which would prohibit the COVID-19 vaccine from being required for:
employment or continued employment; attendance or employment at a
public or private educational institution; or residency at a
nursing home. On the other hand, Assembly member Richard Gottfried
is sponsoring A2081, which would require residents and employees of
long-term care facilities to receive the COVID-19 vaccine in
addition to the vaccines already required. Two other proposed laws,
S02677 (religious exemption) and S02678 (physician liability), add
an exemption to school vaccine requirements for those with
sincerely held religious beliefs that prohibit them from receiving
the vaccine and clarify that a physician’s failure to immunize
a patient or provide a certificate exempting a patient does not
constitute professional misconduct. All of these bills are pending
before the relevant legislative committees.
In setting vaccine policies, employers should be cognizant of
pending legislation in their states and may want to seek specific
IV. Collecting Vaccination Status Information from
Generally, employers may collect information about whether
employees have been vaccinated and, under federal law, may
require employees to show proof of receipt of a COVID-19
vaccination.23 If employers ask employees to provide
proof of vaccination, employers should consider restrictions under
federal law that prevent employers from making disability-related
inquiries and ensure vaccine-related information is kept private
Employers should be aware of prohibitions in the ADA on making
inquiries regarding the existence, nature or severity of an
employee’s disability. As there can be numerous reasons an
employee has not been vaccinated, the EEOC has recently confirmed
that asking an employee to show proof of receipt of a vaccine is
not a disability- related inquiry.25 The EEOC has
cautioned, however, that “subsequent employer questions, such
as asking why an individual did not receive a vaccination, may
elicit information about a disability and would be subject to the
pertinent ADA standard that they be ‘job-related and consistent
with business necessity.'”26 Information is
considered “job- related and consistent with business
necessity” when an employer “has a reasonable belief,
based on objective evidence, that (1) an employee’s ability to
perform essential job functions will be impaired by a medical
condition; or (2) an employee will pose a direct threat due to a
Even though proof of vaccination is not considered a
disability-related inquiry, separate confidentiality provisions in
the ADA28 may still apply to data gathered related to
employee vaccinations. For diagnoses of COVID- 19, the EEOC has
advised that “[t]he ADA requires that all medical information
about a particular employee be stored separately from the
employee’s personnel file, thus limiting access to this
confidential information.”29 It is prudent to
assume that information about vaccinations will also be considered
employee “medical history” that should be treated with
similar precautions. State laws may also impose additional
confidentiality and security requirements.30
V. Additional Liability Considerations
When drafting vaccine policies, employers should also consider
their duty to provide a safe workplace. Under Section 5 of the
Occupational Safety and Health Act of 1970, employers must provide
“employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm.”31 Employees who feel their
employer is not taking adequate COVID-19 precautions may request
OSHA inspect their workplace by filing a complaint with the
Secretary of Labor. As of January, 2021, OSHA issued 310
COVID-19-related citations with total initial penalties of
$4,034,288.32 Employees may also sue the employer, but
employees run the risk of the case being dismissed under the
doctrine of primary jurisdiction if the court determines OSHA is
better suited to assess the workplace.33
Employers should also be aware that they may face legal
liability for violations of equivalent state laws as well. For
example, New York Attorney General Letitia James filed a lawsuit
against Amazon for failing to provide a safe workplace in violation
of New York state law on February 17, 2021. The complaint alleges
that Amazon did not comply with cleaning and disinfection
requirements, provide adequate contract tracing, or permit
employees to engage in necessary social distancing and hygiene
practices.34 While likely a remote possibility, an
employee may try to argue that a lax vaccination policy would also
create an unsafe work environment.
Finally, another concern faced by employers is whether they face
liability if an employee has an adverse reaction to a vaccination
they have required. Employers are unlikely to face civil liability
in this situation. Although the law differs by state, in most
states, this type of injury will be deemed to fall under
workers’ compensation laws, which typically supply an
employee’s exclusive remedy.35 Where worker’s
compensation law applies, employers generally face tort liability
only for gross negligence, recklessness, or intentionally exposing
employees to harm. And even where the workers’ compensation law
does not apply, employers will generally be held to at least a
negligence standard. Given the safety information currently
available about the vaccines, it is unlikely that a court would
find an employer was negligent, let alone grossly negligent, in
requiring their use.36
VI. Practical Considerations
As employers consider implementing a mandatory vaccine policy,
they should weigh the benefits against potential liability,
legality in their state, customer expectations, and employee
It appears that the vast majority of employers so far have been
encouraging or incentivizing, rather than requiring, employees to
get the vaccine.37 For example, employers have
encouraged vaccination by giving employees paid time off to get the
vaccine and recover from any side effects.38 Some
employers, including Amazon and JBS SA (meatpacking), offer
employees cash bonuses to get vaccinated.39 In some
states, such as New York, employers may be required by law to
provide paid leave for employees to receive the
vaccine,40 and President Biden has called on all
employers to provide employees with paid time off to get vaccines
and recover from any after effects.41
When considering a vaccine incentive program, employers should
consider evolving areas of federal law governing permissible
incentives related to workplace wellness programs, and the EEOC has
indicated it expects to issue more guidance on this
topic.42 Employer-sponsored wellness programs that
provide medical care are classified as group health plans, subject
to federal regulation, and it is likely that a program to
incentivize vaccines will fall within this category of wellness
plans.43 In January 2021, the EEOC proposed a new rule
clarifying that participation in an employer-sponsored wellness
program must be voluntary, and that employers could only provide
de minimis incentives for participation (such as a water
bottle), but the rule has since been frozen by the Biden
administration.44 Employers should also consider whether
the incentives can be made available to employees who cannot or
will not get vaccinated for protected reasons such as disability or
Given the potential challenges of implementing a mandatory
vaccine policy, and current uncertainty about providing incentives
for employees to receive vaccines, employers may also consider
engaging in educational efforts to better inform their employees
about the safety and utility of the vaccine. For example, OSHA has
recommended features of the “most effective workplace COVID-19
prevention programs,” including making the vaccine available
at no cost to all eligible employees and educating employees on the
benefits and safety of the vaccines.45
Educational efforts and policies to encourage vaccination, in
addition to following other best practices recommended by the CDC
like requiring PPE and distancing, can help employers fulfill their
duty to provide both a safe work environment and safe environment
1. Pandemic Preparedness in the
Workplace and the Americans With Disabilities Act, Equal
Employment Opportunity Commission, at III(B) (updated March 21,
2020) available at https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
(hereinafter “Pandemic Preparedness Guidance”).
2. OSHA’s position on mandatory
flu shots for employees, Occupational Safety and Health
Administration (November 2009), available at https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09.
3. What You Should Know About
COVID-19 and the ADA, the Rehabilitation Act, and other EEO
Laws, Equal Employment Opportunity Commission (December 2020),
available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
(hereinafter “What You Should Know About COVID-19).
4. 29 CFR § 1630.2(r)
5. What You Should Know About
COVID-19, at G.4.
6. Pandemic Preparedness
Guidance, at I(B).
7. 29 CFR § 1630.2(r).
8. 42 U.S.C. § 12101.
9. 42 U.S.C. 2000e et seq.
10. What You Should Know About
COVID-19; see also Norman v. NYU Langone Health
System, 2020 U.S. Dist. LEXIS 180990, *13 (2020)
(“Discrimination in violation of the ADA includes, inter
alia, not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual
with a disability.”) (internal quotations omitted) (quoting
McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 96 (2d Cir. 2009). See also Weber v. Roadway
Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000) (under Title
VII, “[a]n employer has the statutory obligation to make
reasonable accommodations for the religious observances of its
employees, but is not required to incur undue hardship).
11. Pandemic Preparedness
Guidance, at II(C).
13. What You Should Know About
COVID-19, at K.7.
14. Id. See also, e.g., Horvath
v. City of Leander, 946 F.3d 787 (5th Cir. 2020) (finding
the defendant not liable for violations of Title VII after the
defendant-employer terminated an employee who did not comply with
the employer’s flu vaccine policy after the employer offered to
transfer the employee to a position that did not require the
15. 29 U.S.C. § 623(a)(2).
16. HIPAA prohibits discrimination
against participants in group health plans on the basis of a
“health factor,” which includes health status, medical
condition, claims experience, receipt of health care, medical
history, genetic information, evidence of insurability, or
disability. 29 CFR § 2590.702.
17. 21 U.S.C. §
18. LeGaretta v.
Macias, 2:21-cv-00179-MV-GBW (D.N.M. Feb. 28, 2021).
19. See California Educators for
Medical Freedom v. Los Angeles Unified School
District, 2:21-cv-02388-DSF-PVC (C.D. Cal. March 17,
20. See 21 U.S. Code §
360bbb-3, Section (e)(1)(A).
21. Medtronics, Inc. v.
Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
22. Workplace Vaccination
Program, Centers for Disease Control and Prevention (updated
March 25, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html.
23. What You Should Know About
COVID-19, at K.3. See also Workplace Vaccination
Program, Centers for Disease Control and Prevention (updated
March 25, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html.
24. “A covered entity may require a
medical examination (and/or inquiry) of an employee that is
job-related and consistent with business necessity.” 29 C.F.R.
§ 1630.14(c). “Information obtained under paragraph (c)
of this section regarding medical condition or history of any
employee shall be collected and maintained on separate forms and in
separate medical files and be treated as a confidential medical
record.” 29 C.F.R. § 1630.14(c)(1).
25. What You Should Know About
COVID-19, at K.3.
26. Id. The EEOC has further
recommended that, “[i]f an employer requires employees to
provide proof that they have received a COVID-19 vaccination . .
.the employer may want to warn the employee not to provide any
medical information as part of the proof in order to avoid
implicating the ADA.” Id.
27. Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees
under the ADA, EEOC (July 27, 2000), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees.
28. See 29 C.F.R. §
1630.14(c)(1) (providing that information regarding the medical
history or condition of any employee that has been voluntarily
collected “shall be collected and maintained on separate forms
and in separate medical files and be treated as a confidential
medical record, except that: (A) Supervisors and managers may be
informed regarding necessary restrictions on the work or duties of
the employee and necessary accommodations; (B) First aid and safety
personnel may be informed, when appropriate, if the disability
might require emergency treatment. . . .”)
29. What You Should Know About
COVID-19, at B.1.
30. The privacy protections under HIPAA
will not be implicated for most employers, as HIPAA applies to
“covered entities,” limited to: “(1) A health plan;
(2) A health care clearninghouse; [and] (3) A health care provider
who transmits any health information in electronic form.” 45
CFR § 160.103; see also Employers and Health Information
in the Workplace, U.S. Department of Health & Human
Services Nov. 2, 2020), available at https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html.
31. 29 U.S.C. § 654. See also
Protecting Workers: Guidance on Mitigating and Preventing the
Spread of COVID-19 in the Workplace, Occupational Safety and
Health Administration (January 2021), available at https://www.osha.gov/coronavirus/safework. For
further analysis see Cahill Gordon & Reindel LLP Firm
Memo, “Employer Waivers of COVID-Related Liability” (Feb.
12, 2021) at https://www.cahill.com/publications/covid-19-insights/2021-02-12-employer-waivers-of-covid-related-liability/_res/id=Attachments/index=0/Employer%20Waivers%20of%20COVIDRelated%20Liability.pdf.
32. Inspections with COVID-related
Citations, Occupational Safety and Health Administration
(January 14, 2021), available at https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations.
33. See e.g., Palmer v.
Amazon.com, Inc., 2020 U.S.
Dist. LEXIS 203683 (E.D.N.Y. 2020) (granting defendant’s motion
to dismiss failure to provide a safe workplace claim because
plaintiffs did not request an OSHA inspection).
34. People of N.Y. v. Amazon.com, Inc., Index No.
45362/2021 (N.Y. Sup. Ct. Feb. 16, 2021).
35. For example, in a 2015 decision, the
New York State Workers’ Compensation Board found that a social
worker’s arm injury stemming from a flu vaccine arose out of
and in the course of employment where, inter alia, her
employer offered the vaccine on premises, strongly encouraged
employees to receive the vaccine, and in the absence of receiving
the vaccine, required employees in her position to wear masks,
which would be detrimental to their work. Matter of Mt. Sinai
Medical Center, Case No. G0695787, 2015 NY Wrk. Comp. LEXIS
11474 (Dec. 2, 2015). See also generally 1 New York
Workers’ Compensation Handbook § 1.01 (2020).
36. According to the FDA, the COVID-19
vaccines in use are safe and effective. For the most serious
potential side effect, anaphylaxis, the FDA reported an anaphylaxis
rate of 2.5 out of one million first doses of the Moderna vaccine
and 11.1 cases of anaphylaxis for every million first dose of the
Pfizer-BioNTech vaccine. Allergic Reactions Including Anaphylaxis
After Receipt of the First Dose of Moderna COVID-19 Vaccine —
United States, December 21, 2020–January 10, 2021,
Centers for Disease Control and Prevention (Jan. 29,
2021); Allergic Reactions Including Anaphylaxis After Receipt of
the First Dose of Pfizer-BioNTech COVID-19 Vaccine — United
States December 14–23, 2020, Centers for Disease Control
and Prevention (Jan. 15, 2021), at https://www.cdc.gov/mmwr/volumes/70/wr/mm7002e1.htm#.
The CDC and FDA have also shown they will act quickly to pause the
use of a vaccine where there are even suspicions of safety
concerns. See Joint CDC and FDA Statement on Johnson &
Johnson COVID-19 Vaccine (Apr. 13, 2021), available at https://www.cdc.gov/media/releases/2021/s0413-JJ-vaccine.html.
37. Marketwatch, “Just 0.5% of U.S.
companies mandate COVID-19 vaccination for all employees,”
(Feb. 12, 2021), at https://www.marketwatch.com/story/just-0-5-of-u-s-companies-mandate-covid-19-vaccination-for-all-employees-11612928585.
38. CNN, “These companies are paying
their employees to receive the Covid-19 vaccine” (Mar. 25,
2021), at https://www.cnn.com/2021/03/24/business/covid-vaccine-incentives-companies/index.html.
39. Dallas Morning News, “Amazon,
Aldi, Walmart, Trader Joe’s and other retailers begin to
encourage workers to get the vaccine” (Jan. 22, 2021), at https://www.dallasnews.com/business/retail/2021/01/22/amazon-aldi-walmart-trader-joes-and-other-retailers-begin-to-encourage-workers-to-get-the-vaccine/.
40. See Public and Private Employees
Will Be Granted Up to Four Hours of Excused Leave Per
Injection, Governor Andrew M. Cuomo (March 12, 2021),
available at https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-granting-employees-time-receive-covid-19-vaccination.
41. See FACT SHEET: President Biden
to Call on All Employers to Provide Paid Time Off for Employees to
Get Vaccinated After Meeting Goal of 200 Million Shots in the First
100 Days, the White House (Apr. 21, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/21/fact-sheet-president-biden-to-call-on-all-employers-to-provide-paid-time-off-for-employees-to-get-vaccinated-after-meeting-goal-of-200-million-shots-in-the-first-100-days/.
42. See Letter from Carol R.
Miaskoff, EEOC Acting Legal Counsel, to Edwin Egee et al., National
Retail Federation (April 15, 2021), available at https://aboutblaw.com/WTZ.
43. Group health plans include employee
welfare benefits plans to the extent that the plan provides medical
care, including items and services paid for as medical care. 45 CFR
§ 160.103. Relevant federal laws include the Health Insurance
Portability and Accountability Act (“HIPAA”), the Patient
Protection and Affordable Care Act (“ACA”), the Genetic
Information Nondiscrimination Act (“GINA”), and the
44. See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/.
45. Protecting Workers: Guidance on
Mitigating and Preventing the Spread of COVID-19 in the
Workplace, Occupational Safety and Health Administration
Originally published 04/22/21
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