COVID-19 vaccine: Can businesses and employers mandate it?

This article was originally published in the Portsmouth Herald can can be found here.

Brian Bouchard | December 30, 2020

Now that we have two approved vaccines, many businesses are asking whether they can require customers and employees to vaccinate. Can a company offering harbor cruises out of Portsmouth, for example, require all patrons to show proof of vaccination or otherwise be denied service? Can companies across the New Hampshire Seacoast require their workforces to vaccinate before returning to an in-office setting?  Putting aside vaccine scarcity for a moment, the question of whether businesses can mandate vaccination is muddled and contains many traps for the unwary.

Let’s start with how the vaccine received approval. So far there are only two companies with approved vaccines: Pfizer and Moderna. Each company received what’s called an Emergency Use Authorization (EUA) from the Food and Drug Administration.  Fair warning, this article contains a good deal of abbreviations.  An EUA is not the same as full FDA approval.  It is available only in limited circumstances, such as public health emergencies, and comes with conditions attached.  One such condition is that individuals receiving the vaccine must be informed of their “option to accept or refuse” the vaccine and of “the consequences” for refusing.

For its part, the Equal Employment Opportunity Commission (EEOC) has all but confirmed that employers may require COVID-19 vaccinations but with certain caveats imposed by the Americans with Disabilities Act (ADA) and Title VII.  The ADA prohibits employers from subjecting employees to “medical exams” or “medical inquiries” unless they are “job related and consistent with a business necessity.”  Think, asking an employee whether they can lift fifty pounds due to a change in manufacturing processes.  In guidance published on Dec. 16, 2020, the EEOC confirmed that the COVID-19 vaccine is NOT a medical exam and asking whether an employee received the vaccine is NOT a medical inquiry.  Meaning that requiring employees to vaccinate technically need not be “job related and consistent with a business necessity.”

The EEOC offers two end-run solutions.  First, employers may offer the vaccine on a voluntary basis. Such that the employee answers the prescreening questionnaire voluntarily and will not be penalized for declining to do so. Second, employers may farm out vaccine administration to third parties. Instead of administering the vaccine itself or hiring a provider to come into the work place, employers can require that the vaccine be administered by entities with whom it does not have a contract, such as a pharmacy or other healthcare provider, and pick up the bill (if any) later.  Either solution will avoid the trappings of the prescreening questionnaire becoming a “medical inquiry” under the ADA.

As a final word, employers must remember that some employees may decline the vaccine, even if mandated by company policy, for legally protected reasons. Some may object on religious grounds while others may decline for disability-related reasons, such as a contraindication.  Employers must exercise caution here. Individuals declining to be vaccinated under these circumstances are, except in the rarest environment, entitled to participate in the interactive process where both parties consider a reasonable accommodation that would not impose an undue hardship on the employer. Workable accommodations may include mask wearing, teleworking, isolated work environments, leaves of absence, or even position reassignment.