By Allison L. Davis and Brittany K. Hinton, Brown & Fortunato, P.C.
On December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) published new guidance concerning mandatory vaccinations in an updated version of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. In the article, the EEOC analyzes potential disability discrimination implications of employers requiring their employees to receive SARS-CoV-2 (“COVID-19”) vaccinations as a condition of returning to or remaining in, the workplace.
The guidance makes clear that vaccination for COVID-19 is not a medical examination and, moreover, that requiring proof of employee vaccinations is not a disability-related inquiry. Implicit in this analysis is the EEOC’s 
approval of employer-mandated COVID-19 vaccinations for their employees.
The question remains, however, whether employers should mandate COVID-19 employee vaccinations. This question is especially significant for employers in the healthcare industry whose employees frequently come into contact with sick or vulnerable patients. In making such a determination, employers should consider the risks associated with both mandating and failing to mandate employee vaccinations as well as current guidance from the Department of Labor (DOL), Occupational Safety and Health Administration (“OSHA”), and public health authority.
The general duty clause of the Occupational Safety and Health Act of 1970 requires employers to furnish to each employee employment and a place of employment that is free from recognized hazards that could cause death or serious physical harm to employees. In 2020, the Department of Labor (DOL) identified COVID-19 as a “recognized hazard” under the general duty clause. Accordingly, employers have a duty to ensure that COVID-19 positive employees stay away from the workplace and do not expose coworkers to the risk of infection. Employers also have a duty to implement procedures to reduce the transmission of COVID-19 in the workplace to the greatest extent possible.
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OSHA typically provides standards for employer vaccination protocols. However, until very recently, OSHA had not issued guidance concerning employer-mandated COVID-19 vaccinations. On January 29, 2021, OSHA published updated guidance titled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. In its guidance, OSHA urges all employers to implement a COVID-19 prevention program and suggests making COVID-19 vaccinations available to eligible employees at no cost. In addition, OSHA recommends employers refrain from distinguishing between workers who are vaccinated and those who are not with respect to protective measures such as wearing a mask and social distancing, as there is currently no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
While OSHA has not issued a requirement that healthcare industry employers mandate COVID-19 vaccines, its recent guidance may be read as encouraging employers to consider such a requirement. However, mandating COVID-19 vaccination for all employees also carries risk. Employers covered by Title VII of the Civil Rights Act of 1964 (Title VII) or similar state anti-discrimination statutes must administer a mandatory vaccination program in a nondiscriminatory manner, consistently requiring all employees with similar jobs and under similar circumstances to be vaccinated. Should an employer choose to only require certain employees to be vaccinated, it must have a legitimate, nondiscriminatory reason for treating the positions differently.
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Similarly, employers subject to Title VII and the Americans with Disabilities Act, or other similar state laws, must include in their mandatory vaccination programs a mechanism to receive and carefully consider employees’ individual religious and disability-related objections to the program’s application. While employees may claim exemption from a mandatory vaccination program based on disability or due to a sincerely held religious practice or belief, employers need not accommodate employees’ requests for an exemption for other reasons.
If an employee claims he or she should not be vaccinated due to a disability or sincerely held religious practice or belief, the employer may not immediately exclude the employee from the workplace but must instead determine whether the unvaccinated individual would pose a direct threat to the health and safety of individuals in the workplace. An employee poses a direct threat when there is 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” according to a four-factor assessment. Even if an employer determines that the individual, if not vaccinated, poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other adverse employment action against the employee—unless it is unable to provide a reasonable accommodation (absent undue hardship to the employer) that eliminates or reduce this risk so as not to pose a direct threat.
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While there is no clear, simple answer to the question of employer-mandated COVID-19 vaccinations, healthcare industry employers should stay well apprised of guidance from public health authorities, OSHA, and the DOL regarding COVID-19 vaccinations. For now, employers must face the challenge of navigating legal risks associated with both the implementation of a mandatory vaccination program and the decision to refrain from implementing a mandatory vaccination program, ideally under the guidance of a qualified attorney. Regardless of their position on COVID-19 vaccinations, all employers should implement and continually update strong COVID-19 policies and protocols.