New England Biz Law Update
With several U.S. pharmaceutical companies now conducting large-scale COVID-19 vaccine trials, employment lawyers are beginning to field queries from their corporate clients on whether their employees should be required to take the vaccine once it becomes available.
As a general matter, consistent with guidance from the Equal Employment Opportunity Commission, employers can mandate a vaccine, attorneys say. But there are caveats.
“In situations where there is a direct threat to others, the EEOC has effectively allowed employers to do whatever they want as long as it’s related to the job and consistent with business necessity,” said Alicia J. Samolis, who practices at Partridge, Snow & Hahn in Providence and Boston. “That’s why employers can now do temperature checks. But in my mind, the number one legal considerations when it comes to vaccines are the exemptions allowed for disabilities or religious beliefs.”
Gregory M. Tumolo of Duffy & Sweeney in Providence noted that the applicable EEOC guidelines were actually developed in 2009 during the H1N1 “swine flu” pandemic. He advises employers to “dust off” that guidance and take a look at how the EEOC then approached the issue in terms of disability accommodations under the ADA and religious accommodations under Title VII.
“Typically, leadership on this type of issue is at the federal level, and it’s appropriate for employers to look to the EEOC for guidance,” Tumolo said. “While there may be state mandates, the state lacks significant resources of the federal government, and in any event the state laws are largely modeled on their federal counterparts.”
“If the federal agency tasked with enforcing Title VII and the ADA says you can do it, it’s going to be an uphill battle to challenge a required vaccination in court,” said Matthew H. Parker of Providence’s Whelan, Corrente & Flanders. “Most state court judges would at least find persuasive the federal government’s position on these issues.”
“If the federal agency tasked with enforcing Title VII and the ADA says you can do it, it’s going to be an uphill battle to challenge a required vaccination in court.”
— Matthew H. Parker, Providence
According to Boston lawyer Robert M. Hale of Goodwin, in a number of respects the EEOC views the pandemic as “changing the calculus” on what would otherwise be intrusive steps by an employer, such as implementing testing requirements. And as for accommodations, he said an “anti-vax” employee would not fall within the ADA or Title VII parameters.
“That person would not have a protected basis against vaccination,” he said. “A personal belief has to be grounded in religious beliefs, not based on someone’s feelings or readings on the subject.”
Disability, religious accommodations
Parker said there are “perfectly legitimate business reasons” for employers to require employees to protect themselves and clients from the direct threat to the health of others posed by COVID, so it will be possible for an employer to mandate a vaccine — as it’s currently possible to mandate a flu vaccine — as long as there are procedures in place to claim the exemptions.
“Case law suggests that companies are on pretty firm ground if they choose to require vaccinations,” Parker said, “but employers just can’t lose sight of their obligation to consider disability and religious accommodations.”
According to Parker, an employer can’t simply say “no” to an accommodation request. The business has to engage in an interactive process with the employee and explore options, such as the possibility of a different vaccine or another strategy to protect clients.
An employer can decline a request for a disability or religious exemption only if it poses an “undue hardship” to the business.
“Undue hardship is not a dollars and cents thing,” Tumolo pointed out. “The type of workplace and the nature of the employee’s job can weigh into the hardship analysis. An accommodation that may be reasonable for a large employer may be a burden for a small employer, considering size, complexity and resources.”
There is a cost-benefit analysis as to whether an employer should require or strongly recommend a vaccine, but a mandate might be considered an action consistent with an employer’s obligation to provide a safe and healthy workplace under OSHA, Tumolo reasoned.
“If there’s something easy an employer can do and they do not do that, it suggests to me they are not taking that obligation seriously,” he added. “Throughout the pandemic, employers have been implementing all sorts of measures to protect their employees, such as moving workstations, requiring masks, and regular cleanings, and a vaccine may become another tool in their arsenal. I see a safe, effective vaccine as part of that plan.”
As for whether a regulation is “job-related,” Parker said that may depend on an employee’s role.
“A big retail company might mandate vaccines for ‘customer-facing’ employees but not for those working from home. However, the business would be well advised to make sure its selection of people isn’t skewing toward a protected class,” he said.
Business considerations
In rolling out a mandate, Parker said a company should be clear in stating its policy on how employees can go about claiming an exemption, a process that in his view should probably be administered by HR and not by direct supervisors.
Other considerations might be the costs of a vaccination program, staff morale, and employees’ privacy interests against undue intrusions into their personal lives, he said.
While he doesn’t believe a vaccination requirement would necessarily violate an employee’s right to privacy, he said an employer does not want to be perceived as imposing arbitrary requirements.
“Under Massachusetts law, to determine whether an employer’s action violates an employee’s privacy, an employee’s privacy interest is balanced against the employer’s legitimate business interest,” Hale said.
“I expect that here, the employer’s interest in maintaining a safe and healthy workplace would outweigh an employee’s privacy interest in not being subjected to a vaccination,” he said.
Meanwhile, Samolis expressed concern about the prospect of potential unionization by unhappy employees.
“Even if an employer has been told they can do this, any time you have a group of employees who feel strongly about something, such as wearing masks, coming into the office, or vaccinations, you run the risk of them unionizing,” Samolis said. “And from an employer’s perspective, that is among the worst things that can happen.”
Hale said employers should remember that any mandate is a directive that individuals may resist and be frustrated by, which he has seen in the context of masking. He thus envisions fewer vaccination requirements and more “strong encouragement,” noting that while employers have the right to require them, along with the backing of the EEOC guidelines, many companies will be reluctant to implement an absolute mandate for employee relations reasons, not because of a serious concern of legal risk.
“It will also be interesting to see whether the masking requirement, which right now is a basic state law mandate, will be relaxed once we have a vaccine available. It may be a matter of science and practicality and whether a business wants to be able to police things more easily by requiring everyone to wear masks,” Hale said.
As for her predictions, Samolis said that “if the vaccine becomes available relatively soon, let’s say in the next several months, a lot of employers may mandate vaccinations because there is some amount of public pressure right now.”
For example, she said restaurants could enjoy a benefit from being able to confidently report to their customers that all of their employees have been vaccinated.
“But the more time that passes and the more people that have already had the virus, the less those business considerations may matter,” Samolis countered. “If there’s one thing we know about COVID, things change rapidly, so it’s hard to predict what might happen.”
