In the next few months, as a COVID-19 vaccine becomes more widely available, many employers will be faced with a decision of whether to mandate vaccination for their employees. This consideration will raise a multitude of questions, including: (1) Can employers require mandatory COVID-19 vaccinations?, (2) What are the consequences of an employee’s refusal to be vaccinated?, (3) If more than one vaccination is available, how will the determination be made for which vaccination will be required?, and (4) If there is a limited supply, how will vaccinations be prioritized?

Governmentally mandated vaccination policies are generally considered legal, subject to limited categories of exemptions and state law. Per the U.S. Supreme Court, states have a general police power to promote public health and safety and authority to mandate vaccination. For example, in 1905, the U.S. Supreme Court upheld a state law requiring vaccinations against smallpox, as it had a “real substantial relation to the protection of the public health and safety.” Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905). Similarly, the U.S. Supreme Court upheld a decision that excluded a child from school due to her unvaccinated status. Zucht v. King, 260 U.S. 174 (1922). Every state has a law that requires certain vaccinations for students while some states also have laws requiring vaccine mandates for health care workers. However, those vaccine mandates include certain medical exemptions, religious exemptions, and exemptions based on personal or moral beliefs. Earlier this month, Wisconsin’s Health Services Secretary Andrea Palm said the Evers administration does not plan to mandate COVID-19 vaccinations of students or workers in Wisconsin.

It is anticipated that many employers will require and/or strongly encourage their employees to receive the COVID-19 vaccination, with few exemptions. Employers must comply with state and federal laws relating to an employee’s religion or disability in the context of vaccinations. For example, exemptions to vaccines are recognized under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Importantly, the U.S. Equal Employment Opportunity Commission states that COVID-19 meets the ADA’s “direct threat standard.” Labeling COVID-19 as a direct threat means that an employee with COVID-19 in the workplace poses a “significant risk of substantial harm” to others. The ADA allows for extensive preemptive COVID-19 testing and other screening measures, such as temperature testing, at the workplace.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released its updated guidance discussing vaccine mandates in the workplace. The guidance supports the conclusion that an employer may require vaccines in the workplace, so long as there are exceptions available to the mandate – disability exemptions under the ADA and religious exemptions under Title VII.

The EEOC also clarified that the vaccination itself is not a medical examination. However, the pre-screening questions that occur prior to receiving the vaccination are likely to subject to the ADA as they may elicit information about a disability.

According to the EEOC, asking or requiring an employee to provide proof of receipt of the COVID-19 vaccination is not a disability-related question. Simply requesting proof of receipt of the vaccination is not likely to raise information about an employee’s disability. If the employer is requiring documentation from a health care provider or pharmacy, it is recommended that the employer remind the employee not to provide any private medical information as part of the proof.

If an employee cannot receive the COVID-19 vaccine because of a disability, then the ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” If the vaccine requirement within the workplace screens out individuals with disabilities, then the employer must show that unvaccinated employees pose a direct threat to the workplace to exclude those employees. The EEOC explained that if the employee cannot get vaccinated for COVID-19 due to a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then the employer may exclude the employee from the workplace. The employer must determine if there is a direct threat caused by that employee entering the workplace without a vaccine. However, this does not mean the employer can automatically terminate the worker. The employer must determine what, if any, other rights apply, and if there are any reasonable accommodations possible.

Employers must consider what consequences will be given to those employees who refuse to vaccinate if they choose to enforce a vaccination mandate. There is a real possibility that not all employees would be compliant with a mandate. Current public opinion polls are showing that the public is not necessarily all on the same page regarding vaccines. Many opponents to a COVID-19 vaccination cite the rushed timeline, safety concerns, and a general distrust of vaccines.

Even though the EEOC has provided the guidance above, it is possible that employers might not want to require vaccinations in the workplace, and instead strongly encourage its workforce to receive the vaccination. A recommendation would eliminate the need for the employer to monitor its employee’s vaccination status and avoid any potential violations of the ADA and Title VII exceptions to the vaccines. In addition, a recommendation removes the employer from this sensitive and personal decision of whether employees want to receive the vaccine. The downside might be that in light of the EEOC framing coming to the workplace as a direct threat, the employer could be exposed to OHSA or similar unsafe workplace complaints by other employees.

Given all the uncertainty with the COVID-19 vaccine, including the current distribution timeline, employers have many options to consider over the next few months regarding enforceability. Employers should review the guidelines from the Center for Disease Control, Wisconsin Department of Health Services, OSHA, and EEOC regarding vaccinations and compliance in the workplace. Employers should also review their policies, especially regarding reasonable accommodations and potential discipline regarding vaccine enforcement. Employers must select whether vaccinations will be mandatory or strongly encouraged but not required. This decision may be affected by the employer’s industry and the level of risk associated with that industry. It is also recommended that employers consider what, if any, alternatives must be provided to those employees that cannot or will not receive the vaccine due to a disability, religious accommodation, or otherwise.

At this time, employers should consider how they want to proceed and determine whether mandating the COVID-19 vaccine is appropriate in their workplace.

© 2020 Davis|Kuelthau, s.c. All Rights ReservedNational Law Review, Volume XI, Number 4