“The Vaccinated Workplace: Recent Developments and Controversies,” by Jill Kahn Marshall and Deena R. Merlen

With President Biden announcing that all adults in the United States should be eligible to receive the Covid-19 vaccine by April 19 and Covid-19 restrictions being lifted or eased throughout much of the country, many businesses that had remained shuttered or remote throughout the pandemic are considering the return of their workforce to the workplace. Along with such considerations, there is one question on many employers’ minds: can they mandate employees get the Covid-19 vaccine?

EEOC Guidance Regarding Mandatory Vaccination

The Equal Employment Opportunity Commission (EEOC) has issued guidance on the subject, which indicates that yes, employers are permitted to mandate vaccinations and to ask employees whether they have been vaccinated. However, this greenlight comes with caveats. Employers must provide reasonable accommodations for anyone who cannot get vaccinated due to a disability or sincerely held religious belief. Additionally, while they can ask employees whether they have been vaccinated, employers cannot ask additional questions that might violate the Americans with Disabilities Act, e.g., requiring employees to disclose underlying health conditions preventing vaccinations. (Section K of the EEOC guidance, which is available here, provides further information regarding the reasonable accommodation process and considerations with respect to Covid-19 vaccination requirements in the workplace.)

While the EEOC guidance provides employers with some cover in the event of a challenge to a workplace policy mandating Covid-19 vaccination, it is just guidance. Such guidelines are still subject to challenge in court by employees, and there is currently at least one case challenging employer-mandated Covid-19 vaccinations on the basis that the vaccine was approved by the United States Food and Drug Administration only under Emergency Use Authorization.

Opposition to Mandatory Vaccination Policies

Moreover, executive orders and proposed legislation opposing mandatory vaccinations, required isolation or quarantine and “vaccine passports” are trending in select states. For example, the Governor of Texas issued an executive order on April 5, 2021 that prohibits Texas government agencies, along with “any public or private entity that is receiving or will receive public funds,” from requiring vaccine passports. The order states that this includes grants, contracts, loans or other forms of taxpayer money going to that entity. The Governor of Florida similarly issued an executive order nixing vaccine passports on April 2, 2021.

At least 26 state legislatures have also proposed legislation prohibiting employers from requiring employee vaccinations, including Arizona, Pennsylvania, Rhode Island and Washington, among others. In South Carolina, for example, six senators introduced legislation (S177) “to provide that COVID-19 vaccinations are purely voluntary, to provide that an employer cannot take an adverse employment action against an employee who chooses not to undergo a COVID-19 vaccination, and to provide that the Department of Health and Environmental Control cannot require isolation or quarantine for a person who chooses not to undergo a COVID-19 vaccination.” On March 31, 2021, South Carolina Senate’s Committee on Medical Affairs issued a favorable report on the proposed bill, but proposed amendments that would allow employers treating or caring for populations at high risk from Covid-19 to mandate vaccinations, allow employers to incentivize vaccinations and allow employers to mandate employee quarantines related to Covid-19 in compliance with state and federal guidelines.

Many employers that wish to avoid these potential challenges to mandatory vaccination policies have opted instead for employee incentive programs, such as additional paid time off or small cash payments, in order to encourage employee vaccination. Employers considering these options must ensure, however, that such incentives are not so substantial as to be considered “coercive” in violation of the Americans with Disabilities Act. Employers also may be exposed to claims that they are discriminating against those with disabilities or sincerely held religious beliefs by extending certain benefits only to those getting the vaccine.

Requiring Vaccinations for Independent Contractors

Whether businesses can require independent contractors with whom they work to show proof of vaccination prior to entering their premises may vary depending upon where the business is located.  In many jurisdictions, contractors are not provided with the same protections as employees, so there may be few impediments to the implementation of such requirements. In New York State and New York City, anti-discrimination laws have been extended to protect contractors in recent years, meaning that employers in these locations should provide the same reasonable accommodations to contractors as employees.

Employee Time Off for Vaccinations

With Covid-19 vaccination rates on the rise, employers have also begun grappling with employee time off for vaccinations. New York State has amended the New York Labor Law to require employers to provide employees with paid time off, at their regular rate of pay, in order to receive the Covid-19 vaccine. Employers are required to provide employees with “a sufficient period of time, not to exceed four hours per vaccine injection,” and such leave must be in addition to any paid leave to which the employee is otherwise entitled, including paid sick leave under New York State law. The California Legislature has also passed a law requiring employers with 25 or more employees to provide employees with paid time off for various reasons related to Covid-19, including to receive the Covid-19 vaccine and to recover from any vaccine-induced symptoms that prevent the employee from working.

While federal law does not mandate paid leave for vaccinations, the recently enacted American Rescue Plan provides tax reimbursements for employers with less than 500 employees that provide paid time off to employees to receive Covid-19 vaccinations or to recover from side effects related to having received the vaccine. Employers will be reimbursed for wages paid at the employee’s regular rate, up to $511 per day.

Having now administered more than 150 million doses of the Covid-19 vaccine, the United States is well on its way to vaccinating a significant portion of its adult population. Employers and employees should stay tuned as the legal parameters around vaccinations and the workplace are rapidly evolving as the pace of vaccinations quickens.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon in regard to particular legal matters. If you seek assistance with a particular employment law or labor law matter, please contact RPJ Partners Jill Kahn Marshall or Deena R. Merlen to discuss.