Synopsis Seyfarth: EEOC recently issued guidelines for employers who are considering forcing their employees to receive the COVID-19 vaccine. Employers also have other considerations, including how to deal with temporary workers in their workplaces, whether FDA emergency use permits alter the calculation of the vaccine and how state laws can impact decision-making. We have addressed some of the additional nuances of this fluid situation.
Seyfarth offered a comprehensive review of the EEOC guidance of December 16, 2020 on whether employers can require their employees to receive the COVID-19 vaccine. With these guidelines in hand and the prospect of widespread vaccine distribution in 2021 on the horizon, employers are exploring their options for developing vaccination programs. Seyfarth received a series of frequently asked questions from customers, both before and after the EEOC, and the company continues to monitor these developing issues.
The EEOC’s guidance made it clear that employers I can mandate employee vaccination, under certain conditions, and historically, the federal OSHA has also indicated that employers can enforce vaccines. But employers will face other issues with the employer’s mandatory vaccination as the vaccine becomes more widely available, such as how to deal with contractors or other temporary workers in the employer’s workplaces.
Typically, employers have greater flexibility in relation to vaccine requirements for contractors / temporary workers (or even visitors) – similar to testing and screening – because employers are under no obligation to accommodate these individuals (ie the ADA only applies employees); however, some states have different legal requirements. For example, New York, allows “employees or candidates with disabilities. . . [to] request reasonable accommodation, regardless of. . . employment status (permanent, contingent, temporary or provisional). “
According to section 296-d of the New York Human Rights Act:
It must be an illegal discriminatory practice for an employer to allow illegal discrimination against non-employees in their workplace. An employer can be held responsible for a non-employee who is a contractor, subcontractor, supplier, consultant or other person who provides services under a contract in the workplace or who is employed by such contractor, subcontractor, seller, consultant or other person provision of services under a contract in the workplace, in relation to an illegal discriminatory practice, when the employer, its agents or supervisors knew or should have known that such non-employee has been subjected to an illegal discriminatory practice in the employer’s workplace , and the employer did not take appropriate and immediate corrective measures. In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal liability that the employer may have with respect to the conduct of the person who engaged in the illegal discriminatory practice must be considered.
“Illegal discriminatory practice” includes “refusing[al] hire, employ, bar or dismiss such an individual or discriminate against such individual in terms of remuneration or in terms, conditions or privileges of employment ”based, for example, on creed or disability.
For the purpose of uniformity, employers may wish to align the vaccination requirements of their employees and contractors. Employers should also remain aware of possible issues of joint employment when addressing non-employee issues, including whether to ask for and how to maintain confirmation of vaccination for these individuals.
Another thing that employers should consider is that COVID-19 vaccines are currently available only under FDA (“USA”) emergency use permits. In allowing the emergency use of a vaccine, the FDA has an obligation to:
[E]Ensure that vaccine recipients under a USA are informed, as far as possible in applicable circumstances, that the FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, to what extent these benefits and risks are unknown, who have the option to accept or refuse the vaccine and any alternatives available for the product.
This information is usually transmitted in a patient information leaflet, provided at the time of vaccination. Although the EEOC may not identify significant additional obstacles when considering vaccine mandates under a USA, compared to full FDA approval, we expect more robust development of the law in this space as employees (and perhaps others in the workplace) test this approach in court.
In any case, the arrival of the vaccine does not end the pandemic. Employers must maintain COVID-19 mitigation protocols during the distribution of the vaccine. These policies can continue for a long time, as the vaccine is distributed to different groups of workers and employers work to request accommodation. Employers who have operated with, for example, social distance, masks, etc., must be able to continue (and can use these procedures as continuous accommodation for employees who do not receive the vaccine).
As with all COVID-19 things, states will also have a say. Each state has developed a vaccine plan and we generally expect states to follow federal guidelines regarding the administration of COVID-19 vaccines. Our fingers are crossed that, in the interests of public health and the widespread implementation of the vaccine, California will adopt an interpretation of its Fair Employment and Housing Act consistent with the EEOC’s determination that administering the COVID-19 vaccination is not an examination doctor and that The employers’ request for proof of vaccination is not a disability related inquiry.
The California COVID-19 vaccine page states that “there is no mandatory vaccination requirement from the state or federal government. Although vaccine doses were limited in supply at first, we hope that by educating Californians about the safety and efficacy of a COVID-19 vaccine, we can encourage voluntary adoption of the vaccine. “
The frequently asked questions about the New York COVID-19 vaccine say “The state of New York is not enforcing the COVID-19 vaccine”.
With dynamic circumstances and in the early stages of vaccine distribution, it is difficult to predict exactly how jurisdictions will proceed. States can continue to consider mandatory vaccines (or prohibit necessary vaccinations). A number of state legislatures have introduced bills that prohibit or limit vaccine mandates (for example, Florida, Kentucky, Missouri, South Carolina, Tennessee and Washington). New York and New Jersey are considering such proposals in current legislative sessions, while New York has also seen a contrasting proposal that would make vaccination COVID-19 mandatory across the state. For a deeper dive into these state issues, take a look here,
For the time being, we have not seen any vaccination mandates across the state, but indications are that employers may require vaccines, subject to relevant legal requirements.