To Mandate, Or Not to Mandate: An Employer's Guide to Vaccination

The latest hot topic for California employers when dealing with the COVID-19 pandemic, is whether mandating employee vaccination is legal and/or prudent. While everyone has a personal opinion on vaccination, the legal standard on what is, and is not, acceptable for employers is becoming more clear every day. Among the concerns voiced by many is the fact that none of the three vaccines distributed in the United States (Pfizer-BioNTech, Moderna and Johnson and Johnson) have received full approval from the United Stated Food and Drug Administration (FDA). Rather, the current vaccines are being administered under an Emergency Use Authorization (EAU) from the FDA.

This article is not intended to serve as a recommendation one way or another, merely an instruction on the current state of the law. Employers should most certainly consult with competent legal counsel to discuss any policy involving vaccination requirements. Here is what we know:

Federal Government Guidance on Mandated Vaccinations

In late May, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated recommendations and guidance directed to vaccination and employment. The EEOC indicated that employers can – under most circumstances -- mandate COVID-19 vaccinations for employees who are required to be physically present at the workplace, without violating federal anti-discrimination laws.

It is critical to note that employer vaccination requirements will still be subject to exemption for bona fide religious and disability-related objections, which would require the employer to enter the interactive process and provide reasonable accommodations. As we have seen for the last 16 months, such accommodations may include work-from-home or telework arrangements, modified work duties and/or a leave of absence under federal or state leave laws. Remember, that is the employer’s burden to demonstrate its efforts to accommodate a religious objection or certified disability – as such, documentation is key investigating through this process.

Interestingly, one of the specific FAQs addressed by the EEOC was whether employers can mandate a vaccine which had been authorized by the FDA under emergency use only. In true bureaucratic fashion, the EEOC’s response was: "It is beyond the EEOC's jurisdiction to discuss the legal implications of EUA or the FDA approach."

The complete guidance from the EEOC can be found here.

Last month, the U.S. Department of Justice also chimed in on the subject saying: "As access to the COVID-19 vaccines has become widespread, numerous educational institutions, employers, and other entities across the United States have announced that they will require individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit, service, relationship or access." The decision of the DOJ was that existing federal law does not prohibit or limit a private employer’s right to insist on vaccination, so long as the vaccination was authorized for emergency use by the FDA. https://www.justice.gov/olc/file/1415446/download

Moreover, the Biden Administration recently announced a mandate that all federal government agencies would require vaccination (subject to the accommodations discussed above) or weekly virus screenings, effective September 1, 2021. That announcement can be found here.

Further complicating matters are confusing, and sometimes conflicting directions from the U.S. Centers for Disease Control and Prevention (CDC) and California Occupational Safety and Health Administration (Cal/OSHA) as it applies to masking mandates for vaccinated employees, and employers’ collective heads are swimming!.

Employer Trends

As the delta variant of the virus continues to run rampant through communities, more employers are seriously looking at vaccination requirements to keep employees safe while at work. Although there is no official “tracking” of which employers are mandating vaccination, many industry “trend setters”, including Google, Ford Motor Company, McDonald's, Delta Airlines, BlackRock, Netflix, Tyson Foods, Walgreens, Walmart (corporate and management only), are mandating vaccination for U.S.-based employees.

Alternatively, other employers are requiring EITHER proof of vaccination or submission to weekly (or even twice weekly) COVID-19 screening. If your business chooses this path, it is critical that you review wage and hour law to understand the employer’s obligation to pay for the cost of each screening, as well as the time that the employee takes from his/her workday to be screened. California law is crystal clear on both of these issues, if the testing is mandated by the employer!

Among the concerns that an employer must consider are employee morale (on both sides of this debate), the costs of implementing these programs, and – ultimately – what enforcement procedures will be implemented. Employers remain hesitant to take any adverse employment actions against non-compliant employees, for fear of retaliation or wrongful termination claims. These decisions are very fact-intensive and should be made with the assistance of competent legal counsel.

In any event, whether your business mandates vaccination or not, communication is a key aspect of this process. Employee engagement and buy-in will be essential in maintaining morale – especially in a precarious and uncertain time. To say that this area of law is extremely murky is an understatement. In fact, any and every decision involving the highly personal and contentious issue of vaccination is one that should be carefully considered and discussed with counsel. The last thing any business wants is to open the door for potential liability in a (relatively) new and untested area of the law.