By Philip Siegel, with Hendrick, Phillips, Salzman & Siegel, P.C.

The short answer to this question is that federal law allows private employers to require vaccinations as a condition of employment.  Indeed, the EEOC has now opined that the COVID-19 vaccination itself is not a medical exam.  This means employers can require the vaccination as a condition of employment, although employers need to be mindful of employees claiming an exemption from the vaccination policy based on health-related or religious reasons.  Employers who will be administering the vaccination to their employees will also need to clear another hurdle.  Consequently, the rule does come with exceptions.

ADA Concerns

For employees claiming a disability prevents them from getting vaccinated, the question becomes whether the employer can provide the employee a reasonable accommodation that would allow the employee to continue to perform the essential functions of their job without being a direct threat to the employee’s own safety and the safety of others in the workplace.  The direct threat standard is a high one – there must be a significant risk of substantial harm that cannot be eliminated with reasonable accommodation.  The EEOC has already opined that COVID-19 presents a direct threat.  The employee claiming a health-related exemption from the vaccination policy is, in effect, asking for an accommodation in the form of a waiver of the policy as it applies to him or her.  Providing this accommodation may mean subjecting this employee to other screening measures in the workplace, such as temperature taking or requiring this employee to wear a face mask in the workplace.  Be careful, though, because some employees are objecting to wearing masks in the workplace for health-related reasons, which begins the analysis all over again.

Religious Concerns

Similarly, employers also have a duty to reasonably accommodate an employees’ sincerely held religious beliefs, practices, or observances, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion, such as waiving the requirements of the vaccination policy as it applies to this employee.

In either instance, if no reasonable accommodation exists that eliminates the direct threat in the workplace, the employee is without employment protection under either the ADA or Title VII.

Employers Administering the Vaccine

For employers who will be administering the vaccine in the workplace, the EEOC notes that pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions are job-related and consistent with business necessity.  The invites the direct threat issue and analysis discussed above.

Other Considerations

Employers that choose to require their employees to get vaccinated will also need to consider whether the time employees spend getting vaccinated is compensable working time under the Fair Labor Standards Act, and whether the cost is reimbursable to the employee.  Generally, if your company administers the test and determines that requiring the vaccination is job-related and consistent with business necessity, time employees spend getting vaccinated will be compensable work time.  Further, the cost for the vaccine may be reimbursable, particularly if the cost of the vaccine has the effect of bringing your non-exempt employees’ pay for the week below minimum wage.

What about OSHA?  Under the Biden Administration, there will be efforts to publish a standard addressing the COVID-19 hazard in the workplace.  Whether such a standard will impose upon employers the duty to require or administer vaccines in the workplace remains to be seen.  If the past is any indication, back in 2014, OSHA did opine that during a pandemic, employers may offer appropriate vaccines to workers to reduce the number of those at risk of infection in their workplace.  At that time, OSHA did not impose upon employers the duty to require employees to get vaccinated, but only suggested employers should encourage employees to get a seasonal flu vaccination as part of its pandemic preparedness guidance.

Separate from the legal considerations discussed above, before adopting a COVID-19 vaccination policy, be sure to also consider the possible fall out in employee morale, particularly with employees who are against getting vaccinated for reasons other than health related or religious reasons.  Indeed, Time Magazine recently published an article citing a Pew survey which suggests that as much as 39% of the population “probably” or “definitely” will not take the COVID-19 vaccine.  Are you going to terminate the employee who refuses to get vaccinated without having a protected reason for doing so?  You may have a group of employees that approach you in a united effort to object to a mandatory vaccine policy.  That concerted activity by your employees concerning the terms and conditions of employment is protected activity under the National Labor Relations Act.

Conclusion

While very little of this is clear at this point, what is clear that in anticipation of the COVID-19 vaccine become available, employers should implement a COVID-19 vaccination policy that addresses all of the issues raised above.  Clearly, in drafting such a policy, there is a lot to consider.  As they say, “Do not try this at home!”  Instead, be sure to consult with your legal counsel.

About the Author

Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry.  Philip has an undergraduate B.B.A. from the University of Michigan, and he obtained his law degree from Emory University School of Law.  Philip can be reached at either (404) 469-9197, or via e-mail at pjs@hpsslaw.com.