Get the Vaccine or Get Fired?
By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.
Prescribe the COVID vaccine or not?
This is a question that worries employers around the world. As labor lawyers, we have been asked this question countless times by clients (and friends). Until about a month ago, we could only make our best guess based on guidelines and legal decisions about other vaccines like the flu shot. However, on May 28, the U.S. Equal Employment Opportunity Commission (EEOC) issued some comprehensive COVID-19 guidance that addresses this issue directly.
The EEOC is the federal agency that enforces anti-discrimination laws for jobs. The news is good for Massachusetts employers considering a mandatory vaccination program. Some of the key takeaways for employers are outlined below.
The EEOC guidelines clearly state that an employer can lawfully require employees to be vaccinated against COVID-19 as a condition for returning to work. Such a practice would not contradict either the Americans with Disabilities Act (ADA) or the Genetic Information Non-Discrimination Act (GINA). There is one major catch: an employer who mandates vaccines must adequately account for employees who cannot or do not want to be vaccinated because of a disability or genuine religious belief.
These employees may need to be exempted from the vaccination order if other security measures can protect them and others. The EEOC provided examples of such arrangements, including requiring an employee to continue to wear a mask and maintain social distance in the workplace, limit contact with other employees and non-employees, provide a modified shift, and continue teleworking when possible to enable regular COVID testing or to assign the employee to a vacancy at another workplace.
In particular, employers should not assume that an employee does not need any precautions related to COVID just because the employee is fully vaccinated. The guidelines state that an employer may need to take in a fully vaccinated worker if there are still concerns about an increased risk of serious illness due to COVID infection.
For an employee who is unwilling to receive the vaccination because of a genuine religious belief under Title VII, employers should assume that the application is legitimate. However, the EEOC makes it clear that if an employee desires a religious accommodation and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or custom, the employer would be entitled to request additional supporting information.
Employers presented with this issue should proceed with caution as the EEOC is closely assessing such circumstances. Employers are required to conduct a similar “interactive process” with workers who have serious religious objections to vaccination and to provide housing that allows the worker to return to work if it does not present undue hardship.
An employer can lawfully offer employees an incentive to get vaccinated against COVID-19 outside of the workplace as long as the incentive is not significant enough to be a coercion. Unfortunately, the EEOC has not given any examples of what incentives are considered to be “significant enough to be compelled”, nor has it made it clear whether and to what extent an employer must offer vaccination incentives to workers who are vaccinated for medical or religious reasons.
A request from the employer to self-report the vaccination status or to provide documentation or other confirmation that an employee has been vaccinated by a third party (e.g. a pharmacy or a family doctor) is not a medical examination or a request for disability. As a result, employers can lawfully request this information without involving the ADA or GINA.
With this in mind, employers should limit access to vaccination-related information, apply similar safeguards to other types of sensitive personal information, and obtain appropriate employee consent before disclosing vaccination-related information to third parties.
So far, one case has been reported involving mandatory vaccines in the workplace. Similar to the EEOC guidelines, the case supports an employer’s right to prescribe COVID vaccines.
In April, the Houston Methodist Hospital System in Texas issued a directive requiring all staff to be fully vaccinated by June 7, or to be suspended for two weeks. Workers who were not vaccinated by the end of the lock-up period would be dismissed.
At the end of May 2021, more than 100 employees who were not vaccinated and who appeared to have no right to disability or religious freedom filed a lawsuit against the hospital, which made a number of claims, including wrongful dismissal. The judge dismissed the lawsuit in full. In his written decision, the judge expressed his dismay at the plaintiffs, who equated the threat of dismissal for refusing the COVID vaccination with the forced medical attempts in concentration camps during the Holocaust, and called the comparison “reprehensible”.
Using the argument that the vaccine mandate was against public order, the judge wrote that the vaccine requirement was “public order. The Supreme Court has ruled that (a) the involuntary quarantine for infectious diseases and (b) the state-imposed requirements for compulsory vaccination do not violate due process.
While this EEOC policy and recent ruling may seem like a big win for mandatory COVID vaccines in the workplace, Massachusetts employers should be careful if they rely on them too much. The Commonwealth has its own anti-discrimination and regulatory laws, so it’s difficult to predict how this might play out in a state court or administrative proceeding.
In other words, while the decision to make a decision to employers in Massachusetts in need of vaccines is encouraging, it is important to consult with an experienced labor and employment counselor before instituting a mandatory vaccine program.
John Gannon and Meaghan Murphy are attorneys at Skoler, Abbott & Presser, PC, of Springfield; (413) 737-4753; [email protected]; [email protected]