Q: Can we mandate that employees receive a COVID-19 vaccine?

A: This may be the most significant question employers across the country will face in the coming months, management-side attorneys told HR Dive. But "the answer is far from clear," David L. Barron, member at Cozen O'Connor, said in an email.

Employers might look to guidance from federal agencies like the U.S. Equal Employment Opportunity Commission. The EEOC's 2009 guidance document on pandemic preparedness and the Americans with Disabilities Act, released during the H1N1 influenza pandemic and updated this year during the COVID-19 pandemic, said that an employer covered by the ADA may not compel all of its employees to receive an influenza vaccine regardless of their medical conditions or religious beliefs.

In fact, employees may be exempt from an influenza vaccine requirement based on an ADA-covered disability that prevents them from receiving the vaccine, which "would be a reasonable accommodation barring undue hardship," per the agency. Employees who have a sincerely held religious belief, practice or observance that prevents them from taking an influenza vaccine must be provided a reasonable accommodation, unless it would pose an undue hardship — i.e., "more than a de minimis cost" — to the operation of the employer's business.

"Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it," EEOC said.

But that guidance alone may not settle the question of mandating a vaccine for COVID-19, said Barry Hartstein, shareholder at Littler Mendelson and co-chair of the firm's EEO and diversity practice group. From an ADA perspective, the EEOC takes the view that a vaccination is equivalent to a medical examination, he explained, and an employer may only give such exams if they are job-related and consistent with business necessity.

In the healthcare industry, employers routinely require employees to receive vaccines like the influenza vaccine, Hartstein said, but those operating outside that context may not be able to meet the ADA's standard. COVID-19, however, may present a different scenario.

"The one reason why the courts may be a little more supportive dealing with a COVID-19 vaccine and making it permissible, is because we're dealing with a pandemic which in and of itself creates a direct threat to all employers, for anyone who has COVID or the symptoms of COVID," Hartstein said. "So an employer may actually be able to withstand the appropriate standard and actually require it, but you're still going to have to make a reasonable accommodation for some."

Furthermore, employers would still be unable to require such a vaccination before a conditional offer of employment is made, and they could not make the vaccination a part of the application process, he noted.

There are other considerations, too, particularly for workplaces with labor unions. Hartstein noted questions as to whether employers could issue a vaccine mandate without first bargaining with unions. This may be possible assuming that an employer has a management-rights clause in its labor contract, Hartstein said, but the employer may still need to bargain over such aspects as what classes of employees would be subject to vaccination, how frequently such vaccination would be done and what happens if an employee refuses, among others.

And even in a non-union setting, Hartstein said employers will likely need to contend with protected concerted activity in the workplace with respect to vaccination requirements. This may be a particular concern in cases where employees argue that a COVID-19 vaccine is dangerous or likely to cause harm, Barron said; "Employees who band together and refuse to be vaccinated may enjoy protections under federal and state laws for protesting unsafe work rules."

Consider the nature of the vaccine

That point highlights much of the unknowns surrounding the potential development and roll out of a vaccine. For example, it is unclear what the effectiveness and side effects of a potential vaccine are at this time, Hartstein said. Employers may need to research to determine whether the vaccine's effectiveness varies depending on a person's health status or age, he noted, or whether there are negative side effects.

"I think there is going to be a certain level of pushback," Hartstein said, adding that recent anti-vaccination movements may create issues for employers. If an employer decided to fire a group of employees who protest such a vaccination policy, it could end up before the National Labor Relations Board, he added, because this type of protest could be protected activity.

It is not yet known when a vaccine for COVID-19 will be available nor how quickly it will be available to employees, Hartstein said. Documents from the Centers for Disease Control and Prevention indicate that a COVID-19 vaccine would be administered in a "phased approach," with the first phase limited to healthcare personnel and a group that "may include" essential workers, adults over age 65 and those with high-risk medical conditions.

"We're certainly not anticipating that we're going to have it widely available at least until next summer," Hartstein said.

Employers may need to keep in mind that this is an evolving area, he added, noting EEOC itself has said it is looking to organizations like the World Health Organization, CDC and the U.S. Department of Health and Human Services. "You've got to look to the science," Hartstein said. "We should be looking for the best advice that we can get."

Alternative approaches

In short: while the answer to the question of "can" employers mandate a COVID-19 vaccine may be "yes, with a whole series of asterisks," according to Hartstein, the answer to the question of "should" employers do so is a lot more complicated.

"Until we have greater answers and more answers … I'm not convinced that it's prudent to do it," Hartstein said.

Employers, as the EEOC said in its guidance, could instead encourage employees to receive a COVID-19 vaccine, or offer incentives to do so, Barron said.

Hartstein said he hasn't seen the issue of incentivizing a vaccine within the context of a voluntary wellness program come up in discussions with employers, but he said employers must keep in mind that such programs must be voluntary in accordance with the ADA. "Assuming you can pass that threshold then you may get to the question such as, do you want to provide additional incentives," he added. "That may be something for employers to further evaluate."