Requiring Employees to Be Vaccinated for COVID-19

April 5, 2021

Can employers require their employees to be vaccinated for COVID-19? Probably not. Federal and Colorado employment laws do not prohibit employers from requiring COVID-19 vaccination. However, because the COVID-19 vaccines have not been licensed by the Food and Drug Administration, it might be unlawful to require people to be vaccinated. This article first discusses employment law issues, then the FDA issue.

Employers considering requiring employees to be vaccinated need to be aware of issues arising under employment discrimination laws including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Colorado Anti-Discrimination Act (CADA). In addition, there are tort and workers’ compensation issues to consider.

The ADA and Title VII are federal laws that apply to employers with 15 or more employees. However, CADA applies to all Colorado employers, regardless of size. CADA prohibits the same types of discrimination as the ADA and Title VII (but CADA is broader in the types of discrimination it prohibits and the categories of protected persons). The courts generally interpret CADA consistent with how the corresponding federal laws have been interpreted and applied. For these reasons, the information below is relevant to all Colorado employers.

In December, the Equal Employment Opportunity Commission (EEOC) released guidance regarding COVID-19 vaccinations. The EEOC’s guidance implies that requiring vaccination does not violate laws administered by the EEOC. However, employers must still comply with the reasonable accommodation requirements and other aspects of the ADA and Title VII.

ADA

Under the ADA, if requiring vaccination disqualifies an employee or applicant with a disability, the employer must show that an unvaccinated person would pose a "direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

The EEOC guidance identifies specific factors employers should use to make an “individualized assessment” of whether a direct threat exists. The guidance then says, “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” Even if an unvaccinated employee poses a direct threat, the employer cannot fire (or refuse to hire) that person “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”

The ADA prohibits employers from requiring a medical examination or asking disability-related questions unless they are “job-related and consistent with business necessity.” But requiring that an employee be vaccinated does not violate the ADA. The EEOC guidance states that “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a [generally prohibited] disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be job-related and consistent with business necessity.”

The EEOC’s guidance is here. Section K addresses vaccinations.

Title VII

Some workers might object to vaccinations on religious grounds. Title VII requires an employer to accommodate an employee's sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the employer. For purposes of Title VII an accommodation would cause "undue hardship" if it imposes more than a "de minimis" cost or burden on the employer.

According to the EEOC, an employer’s duty to accommodate “will usually entail making a special exception from, or adjustment to, the particular requirement that creates a conflict so that the employee or applicant will be able to observe or practice his or her religion.”

Potential Tort Claims

According to the FDA, severe allergic reactions, including anaphylaxis, can occur after any vaccination. The FDA’s website states that anaphylaxis after COVID-19 vaccination is rare and can be immediately treated.

However, suppose an employer requires vaccination and an employee does have a severe adverse reaction with subsequent serious health issues. Does the employer have any liability? Maybe not, if it is a compensable injury under the employer’s worker’s compensation policy. Colorado employers might want to ask their workers’ compensation carriers about this issue.

Emergency Use Authorization

COVID-19 vaccines have not received final approval from the Food and Drug Administration. They are currently available under the FDA’s “emergency use authorization” (EUA) process.

Section 564 of the Food, Drug, and Cosmetic Act imposes certain conditions on the emergency use of vaccines. One of the conditions is that recipients be informed that they have “the option to accept or refuse administration of the [EUA] product [and] of the consequences, if any, of refusing administration of the product.” This information is usually communicated in fact sheet given to the individual prior to vaccination.

Thus, requiring employees to be vaccinated appears to violate the FDCA. In fact, an officer at a detention center in New Mexico recently filed a lawsuit against his employer over this very issue. In Colorado, an employee terminated for not getting vaccinated might also have a claim for wrongful termination in violation of public policy, due to the right of refusal under Section 564.

Employee Relations

In addition to legal issues, it is prudent to consider the employee relations aspect. Some polls indicate that 1 in 4 Americans refuse to get the COVID-19 vaccination. Many employers are concerned that requiring vaccination will undermine employee morale and negatively impact company culture.

Most employers have decided not to require vaccination but encourage their employees to be vaccinated. Some large employers offer the vaccination on a voluntary basis. A recent study found that only about 1% of employers require the COVID-19 vaccination and only 6% plan to require vaccination after the FDA gives final approval to the COVID-19 vaccines.

Rather than merely encouraging employees to be vaccinated for COVID-19, some employers have considered creating incentives, such as bonuses or gift cards. However, incentivizing employees to receive a vaccination might implicate additional laws such as the Employee Retirement Income Security Act (ERISA), the Health Insurance Portability and Accountability Act (HIPAA), and the Genetic Information Nondiscrimination Act (GINA).

If an employer chooses to require vaccination, it is a good idea to explain the reason to employees and applicants. It is also advisable to consult an attorney to avoid running afoul of the applicable laws.