What Can Employers Do to Require or Encourage Workers to Get a COVID-19 Vaccine?

On July 29, President Biden announced that federal employees must be vaccinated against COVID-19 or meet other conditions, including wearing masks and undergoing periodic testing for COVID-19 infection. Growing numbers of private employers have also announced vaccine requirements for employees to return to work.   This fact sheet reviews what employers can and cannot do under current rules to require or encourage vaccination of their workers.

Can employers require employees to be vaccinated against COVID-19?

In general, yes, employers can require employees who physically enter the workplace to be vaccinated for COVID-19, and before the pandemic, other employer vaccine mandates have been applied, such as a requirement to get a flu vaccine.  For any vaccine mandate, key standards apply under federal law:

First, a mandatory workplace vaccination program must meet standards under the Americans with Disabilities Act (ADA) of being “job related” and “consistent with business necessity.”  This involves making a determination about the threat to safety posed by unvaccinated employees.  The determination will rest on facts and circumstances involving the workplace and job – such as whether work is conducted indoors or outdoors, or the frequency and duration of an unvaccinated employee’s interaction with other people. In addition, the determination must take into account the most current medical knowledge about COVID-19, such as the level of community spread of the virus. CDC is a key source of current medical knowledge about COVID-19.

Second, under the ADA, employers are generally required to provide reasonable accommodations for employees who, due to a disability (including pregnancy) do not get vaccinated against COVID-19.  Under Title VII of the Civil Rights Act, reasonable accommodations are also required for employees who do not comply based on a sincerely held religious belief.  Such accommodations are required unless they would pose an undue hardship, or substantial difficulty or expense, on the employer.  If it is determined that an unvaccinated employee could pose a safety threat, the employer must consider whether a reasonable accommodation could reduce or eliminate that threat. For example, unvaccinated employees might be required to wear masks, or get periodic tests for COVID-19, or be given the choice to telework.

Third, employers must not apply the vaccination requirement in ways that treat employees differently – on the basis race, color, religion, sex, national origin, age, or genetic information – in violation of other federal equal opportunity (EO) laws.

Finally, the employer can ask employees about their vaccine status or require proof of vaccination.  The ADA generally restricts employers from making disability-related inquiries of employees.  However, EEOC guidance states that asking about COVID-19 vaccination status is not a disability-related inquiry under the ADA, as there are numerous reasons why people might not be vaccinated.   If an employee has not been vaccinated due to a disability or sincerely held religious belief or another reason protected under federal EO laws, as noted above, then reasonable accommodations must be considered.

Can employers offer incentives to be vaccinated?

In general, yes, it is permissible for employers to offer workers incentives to get vaccinated against COVID-19.  These could include cash payments, gift cards, or other rewards or penalties.  The EEOC guidance notes that federal law generally would not limit the size of such incentives, with one key exception noted below. The guidance also says employers can take other steps to encourage or facilitation vaccination without violating federal laws.  These include providing information to educate employees about the vaccine and its benefits and to address common questions and concerns.  Employers can also offer time-off for vaccination and to recover from any side effects. The American Rescue Plan Act makes tax credits available to employers to cover the cost of providing paid leave to employees to receive and recover from COVID-19 vaccinations.

Special restrictions on incentives would apply in the case of employers that offer a COVID vaccination program directly to employees.  That is because, prior to administration of the vaccine, CDC requires pre-screening questions about health history, allergies, pregnancy status, etc., and, when the employer or its agent directly provides the vaccine, such pre-screening questions would constitute a disability-related inquiry by the employer.

Under the ADA, disability-related inquiries through an employer health program, including a workplace wellness program, are permitted only if participation in that program is voluntary.  The definition of “voluntary” under the ADA, and whether that could encompass incentives, has been the subject of controversy and litigation.  When the ADA was first implemented, EEOC guidance made clear that a voluntary employer health or wellness program could not require participation nor penalize employees for not participating.  Then, in 2015, an EEOC regulation revised the definition “voluntary” workplace health and wellness programs to include those that imposed substantial financial penalties – up to 30% of the cost of self-only coverage under the employer’s health plan.  A federal court overturned that regulation, ruling that the redefinition of “voluntary” was arbitrary and capricious.  In 2020, the agency began work on a revised regulation to permit wellness program incentives, but suspended activity in 2021.

With regard to employer-provided COVID-19 vaccination programs, current EEOC guidance allows incentives (which includes both rewards and penalties) to participate if incentives are not so large as to be coercive.  The agency does not, however, provide any detail on how large of an incentive would constitute coercion.  Guidance also makes clear that the incentive size limit – whatever it may be – does not apply if an employer offers an incentive to employees to voluntarily provide documentation that they received COVID-19 vaccination from a community provider.

How does FDA emergency use authorization affect COVID-19 mandates?

The US Department of Justice issued a recent opinion stating that employers and other entities are not prohibited from imposing vaccination requirements solely because the vaccine(s) are only available subject to FDA emergency use authorization (EUA).  Earlier, at least one federal lawsuit had been filed challenging an employer’s COVID-19 vaccine mandate on the grounds that vaccines are still subject to EUA.  It is possible that other legal challenges to employer vaccine mandates could arise.

State laws and employer vaccine requirements

In response to federal guidance, legislation has been introduced in many states to prohibit or restrict employers, including public employers, from requiring COVID-19 vaccinations as a condition of work.  As of July 29, such legislation had been enacted in 7 states and was pending in two others.  As a result, even when employers comply with all federal law requirements, it is possible that vaccine mandates could be challenged under state laws.

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