Points For Increased Training Establishments To Contemplate When Implementing A COVID-19 Vaccination Coverage – Employment and HR

As states have opened COVID-19 vaccinations to all individuals
16 and older (and are expanding to age 12 and older, based on the
CDC advisory committee’s recent recommendation), institutions
of higher education, like many other employers, are considering
whether to encourage or possibly mandate their employees to receive
a vaccination. Unlike other organizations, institutions of higher
education have the added quandary of whether to encourage or
mandate COVID-19 vaccinations for students in an effort to return
to full in-person instruction. On March 25, 2021, Rutgers
University became the first major institution of higher education
to publicly announce that all students planning on attending the
fall 2021 semester must be fully vaccinated. Since then, at least
80 colleges and universities have followed suit. Others have taken
a “wait and see” posture, and some have chosen to
encourage, but not require, the vaccine for students and employees.
We summarize the issues and challenges regarding vaccination
policies for employees and students below.

Policies Affecting Employees

As detailed in our prior Alert, the Equal Employment Opportunity
Commission (EEOC) has strongly inferred an employer may implement a
mandatory COVID-19 vaccination policy, so long as exemptions are
permitted for certain medical and religious reasons.

The EEOC has stated that asking or requiring an employee to show
proof of receipt of a COVID-19 vaccination is not a
disability-related inquiry under the Americans with Disabilities
Act (ADA). However, pre-vaccination medical screening questions are
“disability-related” under the ADA if asked by the
employer or a contractor on the employer’s behalf. Such
screening questions may also solicit genetic information, raising
potential concerns under the Genetic Information Nondiscrimination
Act. For this reason, many employers who are considering adopting
mandatory COVID-19 vaccination policies are choosing to rely on
employees providing proof of vaccination by third-party pharmacy
providers, rather than employers administering a vaccine directly
or through a contracted relationship, to avoid improperly obtaining
any medical, genetic or other personal information.

If an employee indicates he or she is unable to receive a
COVID-19 vaccination because of a disability and the employer
wishes to exclude the employee from physically entering the
workplace, the employer must conduct an individualized assessment
to determine whether the unvaccinated employee would pose a direct
threat due to 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.”

Thus, upon receipt of an employee’s accommodation request, a
college or university should be prepared, as part of its mandatory
vaccination program, to conduct the interactive process to identify
whether a direct threat would exist in having an unvaccinated
employee in the workplace, taking into account: the duration of the
risk; the nature and severity of the potential harm; the likelihood
that the potential harm will occur; and the imminence of the
potential harm. If the college or university determines, after this
individualized assessment, that there is a direct threat that
cannot be reduced to an acceptable level, the college or university
may exclude the employee from physically entering the workplace, at
which point, the college or university would have an obligation to
consider other accommodations, such as remote work or a leave of
absence. The college or university may not automatically terminate
an employee in these situations and should consider the
availability of alternate teaching modalities in weighing potential
accommodations.

The EEOC also confirmed that an employee may seek an exemption
on the basis of a sincerely held religious belief, practice or
observance that prevents the employee from receiving a vaccine. In
identifying an employee’s right to request an exemption on this
basis, the EEOC noted that the definition of religion is broad and
that the employer should ordinarily assume that an employee’s
request for religious accommodation is based on a sincerely held
religious belief. However, the EEOC also made reference to the
easier standard for employers to establish that an exemption would
constitute an “undue hardship,” as courts have defined
this term under Title VII as having more than a de
minimis cost or burden on the employer. Thus, while
colleges and universities will need to consider accommodation
requests on the basis of an employee’s sincerely held religious
belief, practice or observance, in general, as with other requests
for religious accommodations, colleges and universities may be able
to establish undue hardship more easily than in the disability
context (although this is not necessarily true under some more
protective state nondiscrimination laws, such as in New York).
Importantly, however, institutions must be prepared to engage in an
individualized accommodation analysis, which ultimately focuses on
the level of risk an employee who is not vaccinated creates and to
what degree that risk can be minimized.

Institutions of higher education must also consider state and
local law when implementing mandatory vaccination policies. For
example, New Jersey has issued specific guidance confirming that
women who are pregnant or breastfeeding and have been advised by a
doctor not to get a vaccine cannot be required to receive a
vaccine. Other states such as New York and California, and cities
such as Chicago and Philadelphia, have passed laws requiring employees to be
provided paid leave for time missed from work related to receiving
a COVID-19 vaccine. Employers with unionized employees will also
need to weigh carefully the strength of the management rights
clause in their collective bargaining agreements to retain the
exclusive right to unilaterally implement reasonable work and
safety rules and any past practice of unilaterally implementing a
policy or practice change against the advantages/disadvantages of
bargaining with the union on the issue of mandating the vaccine. In
addition, employees who protest a mandatory vaccination requirement
in a concerted manner may also be entitled to some protection from
adverse action under the National Labor Relations Act (NLRA).

More recently, public sector employees have filed lawsuits
challenging the ability of their employers to mandate the COVID-19
vaccination due to the fact that the current vaccines have been
released and distributed under emergency use authorizations (EUA)
under the federal Food, Drug and Cosmetic Act (FDCA). The argument
promoted in one of these lawsuits, Legarreta v.
Macias, 2:2021cv00179 (D.N.M. Feb. 28, 2021), is that the
“state” employer action in requiring the vaccine is
preempted by federal law relative to EUA; that is, the FDCA
provides that a vaccine cannot be mandated. In refuting these
claims, there is a potential argument that this theory is
applicable only with respect to public sector employers and,
regardless, is a misreading of the FDCA, which provides only that
those who administer the vaccine must be clear that receipt of the
vaccine is voluntary, but does not state that there cannot be
consequences for declining a vaccine and, moreover, the FDCA does
not regulate the employment relationship.

Notably, the EEOC guidance discussing the manner in which
employers may implement mandatory vaccination programs takes into
account their current EUA status and does not distinguish between
vaccines issued under an EUA or FDA licensure.

Policies Affecting Students

No safe reopening plan would be complete without consideration
of whether to require student vaccinations. At this writing, the
U.S. Department of Education has not provided guidance to
institutions of higher education regarding this issue. However,
universities have long been able to require students to become
vaccinated as a condition of attending school.
See Jacobsen v. Massachusetts, 197 U.S. 11 (1905).
And, as vaccines become more widely available, an increasing number of institutions are
requiring students to do so. As a reminder, the Higher Education
Act requires institutions to publish their vaccine policies and
make them available to current and prospective students as part of
mandatory consumer disclosures.

Even so, institutions should consider how this issue fits into
their safe reopening plans before making student vaccinations
mandatory. For example, in some states, public institutions may
face increased scrutiny or be required to make accommodations for
religious objections that may have to be accommodated under their
state’s version of the Religious Freedom Restoration Act.
Additionally, recent decisions by the Supreme Court of the United
States indicate a new willingness by the Court to reject
traditional deference to public health considerations when it comes
to the First Amendment exercise of freedom of religion. See
e.g., Roman Catholic Diocese of Brooklyn v. Cuomo,
592 U.S. ___ (2020). While no court has yet applied this in the
context of a student objecting to a mandatory vaccine at the
postsecondary level, public institutions should balance allowing
such limited exceptions against the public health threat posed to
the campus community.

Similarly, colleges should consider exceptions to their
vaccination policies based on an individual’s disability.
Virtually all institutions-public and private-are subject to the
ADA and/or Section 504 of the Rehabilitation Act. These laws
require that reasonable accommodations be provided to students with
disabilities. As with employees, institutions should consider
reasonable accommodations for students whose disability prevents
them from receiving the vaccine, keeping in mind that what
constitutes a reasonable accommodation for an employee may be very
different than for a student. 

Finally, while all indications are that colleges and
universities may legally require vaccination of students, more
clarity from the states and the federal government, as well as from
the courts, would be helpful in evaluating the legal risks facing
institutions. And, of course, institutions have many nonlegal
considerations to keep in mind. For example, is mandatory
vaccination of students consistent with an institution’s
values, including inclusivity and equity? Will the emergency use
authorization for all the current vaccines cause more students to
object? How many students are likely to forgo returning to college
rather than take the vaccine? Are less restrictive means of
encouraging vaccination available, such as limiting access to
on-campus housing or group activities for those who are not
vaccinated? Is the campus planning to return to full in-person
capacity, increasing the risk of the virus transmitting through a
population with unvaccinated individuals, or will it return to a
hybrid model with lesser density, allowing for additional
safeguards like distancing and masking? Does the institution have
resources for frequent testing or making vaccines available to
those who may not have access and could be impacted detrimentally
by a mandatory vaccine policy (with vaccine supply on the rise,
lack of access to vaccines appears less urgent but may be an issue
within some communities or for some individuals)? Ultimately, each
institution will need to assess its own risk profile, community
health and other goals, and local and state policies in deciding
how mandatory vaccination policies fit within their safe reopening
plan and campus community before taking any decision.

In deciding on a COVID-19 vaccine policy for both employers and
students, institutions of higher education should continue to
monitor and consider vaccine availability, as it does not make
sense to require vaccinations until they are widely available.
Additionally, institutions that decide to implement a mandatory
policy should train employees responsible for administering it to
ensure all legal requirements?such as providing required
accommodations?are followed. Finally, institutions should continue
to monitor changes to federal, state and local law, regulations,
health and safety orders and guidance that will continue to impact
college and university decisions on returning to in-person
operations.

For More Information

If you have any questions about this Alert, please
contact Linda B. Hollinshead, Edward Cramp, Katherine D. Brodie, any of the attorneys in our Employment, Labor, Benefits and Immigration
Practice Group, and of the attorneys in our Higher Education Group or the attorney in
the firm with whom you are regularly in contact.

Disclaimer: This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm’s
full disclaimer.