By: Parker Thoeni, Esq., Lindsey A. White, Esq., Chad Horton, Esq., and Amelia Green, J.D. expected May 2021
Three Coronavirus 2019 (COVID-19) vaccines have currently received Emergency Use Authorization1 (EUA) from the Food and Drug Administration (FDA). The vaccines for COVID-19 are expected to continue to be an important step in controlling the pandemic, and many employers—particularly those in healthcare—are likely to consider whether they should implement a mandatory vaccine requirement for employees. Weighing heavily in that decision will be the fact that the vaccines are only authorized under EUA rather than under full FDA approval. In addition, employers must consider the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act when implementing any mandatory vaccination requirement. Both laws require covered employers to provide reasonable accommodations to employees absent undue hardship on the employer.
Guidance offered by government agencies such as the Equal Employment Opportunity Commission (EEOC), an individualized assessment of the workplace, and the impact of EUA should be considered in determining whether employers should require a COVID-19 vaccine.2 State and local governments have long held the authority to implement mandatory vaccination requirements.3 Private employers, healthcare institutions in particular, have historically implemented mandatory vaccination requirements for employees with direct patient contact, to prevent the spread of infectious disease, including the flu.4
This article will discuss the legal considerations for employers implementing a mandatory COVID-19 vaccination program in the health care setting, including the ADA, Title VII, OSHA’s General Duty clause, Maryland state law, and special considerations for unionized employers.
1. Impact of Emergency Use Authorization on Mandatory Vaccination Programs
Employers should be aware of potential exposure derived from the EUA statute. The statute providing for EUA contains a provision that states that the FDA must inform individuals receiving the vaccine “of the option to accept or refuse administration of the product.”5 Accordingly, the fact sheets for each of the authorized vaccines require the person administering the vaccine to advise the recipient of the right to accept or refuse the vaccine.6 This has triggered at least one lawsuit in which an employee has argued that the employer should be enjoined from terminating the employee’s employment for refusing to become vaccinated.7 It is unclear how this lawsuit will proceed, but employers should be mindful of the impact of tortious wrongful discharge law in Maryland, a court-developed doctrine that prohibits terminations that violate clear manifestations of public policy.
Unlike the ADA and Title VII analysis below, which applies only to employees in certain protected classes, potential exposure for wrongful discharge extends to any employee preferring not to become vaccinated. Employees can bring four types of wrongful discharge claims in Maryland: (1) termination for exercising a legal duty, (2) termination for refusal to engage in criminal conduct, (3) termination for exercising a legal right, and (4) termination for reporting an employer’s failure to perform a specific duty.8 Employees may argue that refusing the vaccine would be the exercise of a legal right embodied in the EUA law. Whether such a termination would violate a clear mandate of public policy and be found unlawful by a court is an open question. Of course, the FDA is evaluating the vaccines for full approval. Assuming the vaccines obtain full approval, such an argument would no longer be viable because there would be an absence of statutory language upon which to base the public policy argument. In the meantime, employers considering implementing mandatory vaccination programs should consult with counsel about whether their unique needs are sufficiently compelling to override the risk that a court could find a clear mandate of public policy within the EUA statute.
2. Reasonable Accommodations Pursuant to the ADA
Shortly after the FDA’s authorization of the first COVID-19 vaccine (Pfizer was authorized on December 11, 2020, Moderna was authorized on December 18, 2020, and Janssen (Johnson & Johnson) was authorized on February 27, 2021), the EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements.9 Prior EEOC guidance during the H1N1 pandemic in 2009 did not take a clear position that mandatory vaccination policies are prohibited, instead counseling employers that “[g]enerally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”10 In its current guidance, however, the EEOC appears to take a more permissive approach to mandatory vaccination policies, allowing employers to exclude unvaccinated employees from the workplace under certain conditions.
The ADA requires that employers provide reasonable accommodations to employees with disabilities. A “reasonable accommodation” is any change to the application or hiring process, to the job, to the way the job is done, or to the work environment that allows a person with a disability to perform the essential functions of that job. When an employee objects to a vaccine due to a disability, employers must engage in the interactive process with the employee to determine whether they are a qualified individual with a disability and whether reasonable accommodation will be feasible.
Employers facing this scenario, as with all reasonable accommodation interactions, have the right to request medical documentation to determine whether the employee’s condition necessitates accommodation. The EEOC’s conclusion that COVID-19 poses a “direct threat” to individuals with the disease, and to those they come in contact with, expands employers’ ability to inquire into employees’ health and perform medical exams (e.g., taking an employee’s temperature) beyond what is usually permitted by the ADA.11
Given the EEOC’s conclusion that COVID-19 poses a “direct threat”—a determination which the Commission did not make regarding the seasonal flu or H1N1—the current guidance permits exclusion from the workplace of an unvaccinated employee who poses 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.”12 This requires an individualized assessment that considers four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Based on this assessment, the employer must determine that an unvaccinated individual will expose others to the virus at the worksite and, further, that there is no reasonable accommodation that would reduce or eliminate the risk.
The EEOC notes that, although an employer can bar the unvaccinated employee from the workplace, the employer may need to consider whether other accommodations are possible or whether other rights are available—such as remote work or leave under applicable laws or employer policy. The employer may rely on Centers for Disease Control and Prevention (CDC) recommendations or OSHA guidance in determining whether accommodations pose an undue hardship. This assessment leaves open the possibility that, after engaging with the employee about reasonable accommodations, an employer may discharge an employee refusing to become vaccinated.
As to which accommodations may be deemed reasonable, in the context of flu vaccines the EEOC has accepted face masks, working from home, and moving an employee’s workstation away from others as acceptable accommodations. Although the use of masks is widespread, it is likely reasonable to require vaccines, given the potential for human error, shortfalls of cloth and surgical masks (e.g., ill-fitting masks), the shortage of N95 masks and the pitfalls of reuse, and the (seemingly) higher efficacy rate of the available vaccines.13 These facts, in conjunction with the financial hardships caused by the pandemic, will also alter the assessment of whether use of masks can be considered a reasonable accommodation in the current context. Moreover, in the future when Maryland is no longer under a mask mandate, should an employee reject a mask as a reasonable accommodation for political reasons or ideology (e.g., the belief that masks do not work and the government is trying to control people), these reasons need not be accepted, and an employer could terminate the employee for refusing the reasonable accommodation. It is worth noting that current CDC guidance advises those who are fully vaccinated to wear masks except in very specific circumstances that are unlikely to be met in common spaces in most workplaces.
Particularly in the health care context, an employer might take the position that because COVID-19 poses a direct threat, accommodations for individuals who must be physically present in the workplace would constitute an undue burden. However, considering a reasonable accommodation always requires an individualized assessment, and employers should consider other possible accommodations, such as whether the employee can socially distance and whether the employee can work behind plexiglass, etc. What is a reasonable accommodation/poses an undue burden to the employer for a direct care provider is likely to be different than an employee who is a receptionist, for example. A health care employer may well be unable to accommodate the former without an undue burden, while the latter could be placed behind plexiglass.
However, now that there is a safe and effective vaccine, the Commission will likely, as the vaccines become widely available, revise its conclusion that COVID-19 poses a direct threat. When that happens, the Commission will likely revert back to the analysis it uses for the seasonal flu (and used for H1N1) and require reasonable accommodations for qualified individuals with disabilities. At that point, the EEOC would likely accept the use of masks as an accommodation to a COVID-19 vaccine in the workplace. This is particularly true if the CDC also lifts mask requirements generally for those who are vaccinated.
3. Religious Accommodations Pursuant to Title VII
Title VII of the Civil Rights Act requires employers to provide a reasonable accommodation to employees who object to a mandatory vaccination policy based on religious beliefs, absent an “undue hardship” on employers. In contrast to the ADA, to prove undue hardship in the context of religious accommodations an employer must show only that the accommodation would pose more than a de minimis cost. A religious practice or belief is defined by federal regulation as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”14
Face masks, which remain highly encouraged by the CDC15 and required in Maryland (in work areas where interaction with others is likely) in response to COVID-19,16 have been accepted by the EEOC as a reasonable accommodation to religious as well as medical objections to other forms of vaccines.17 The EEOC reminded employers in its COVID-19 guidance that the definition of religion is broad, and that employers generally should not question whether a belief is sincerely held absent an objective basis for calling the belief into question. Unlike the EEOC’s ADA guidance, however, its Title VII guidance does not elaborate on potential accommodations, and, perhaps in recognition of the lower undue hardship threshold, simply concludes that where accommodations are not available, the employee may be excluded from the workplace if other legal rights do not apply.18 It bears noting that the EEOC has brought suit and received sizable settlements in cases where a healthcare employer with a mandatory flu vaccine policy accommodated employees with disabilities but summarily terminated those who refused vaccines on religious grounds.19 Employers should be sure to engage in the interactive process with employees requesting religious accommodations despite the lower undue hardship threshold.
When it comes to the sincerity of the religious belief, the available COVID-19 vaccines have drawn some objection on religious grounds. For example, the U.S. Conference of Catholic Bishops has stated, “Pfizer and Moderna’s vaccines raised concerns because an abortion-derived cell line was used for testing them, but not in their production. The Johnson & Johnson vaccine, however, was developed, tested and is produced with abortion-derived cell lines raising additional moral concerns.”20 The Conference, however, is not advising against taking the Pfizer and Moderna vaccines. Moreover, not every belief is sufficient to garner protection under Title VII. In Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., the court rejected an employee’s claim that his belief that one should not harm their own body and that the vaccine did more harm than good were religious beliefs, finding them to be more medical than religious beliefs.21
4. OSHA General Duty Clause and Safety Concerns
Another consideration for employers when evaluating mandatory vaccination policies is OSHA’s General Duty clause. The General Duty clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”22 This requirement applies to preventing occupational exposure to COVID-19; therefore, each employer should be cognizant of its relative risk level for the spread of COVID-19 when deciding whether to implement a mandatory vaccination requirement.
In the case of COVID-19 vaccines, some have taken issue with the timeline of their development, given that they have been the fastest-developed vaccines in history.
During the COVID-19 pandemic, many employees have raised concerns about the safety of their workplaces. Employees who raise such concerns, when reasonable, are protected from retaliation. Employees who raise generalized concerns about the safety of vaccines, without identifying specifics, will likely not meet this threshold. Employers should consider concerns from employees that identify particular evidence to suggest that a mandatory vaccination policy is unsafe. On the other hand, although the authors do not believe the General Duty clause requires employers to implement mandatory vaccination policies, employers should consider the likelihood that their workplaces will be safer with such policies in effect.
As to the efficacy of a vaccine, employers should continue to follow guidance from the CDC and state/local officials regarding masking and social distancing rather than assuming that a mandatory vaccination policy relieves them of other obligations regarding workplace safety. The CDC currently states that vaccinated individuals should adhere to workplace rules, and should continue to socially distance and wear masks around unvaccinated individuals from multiple households.23
5. Special Considerations for Maryland Hospitals and Nursing Homes with Respect to the Influenza Vaccine
In Maryland, “hospitals” and “related institutions” have special obligations when it comes to the influenza vaccine. Md. Health-General Code § 19-301 defines a hospital as an institution that: (1) has a group of at least five physicians who are organized as a medical staff for the institution; (2) maintains facilities to provide, under the supervision of the medical staff, diagnostic and treatment services for two or more unrelated individuals; and (3) admits or retains the individuals for overnight care.
Hospital employers must offer immunizations for influenza to staff and licensed independent practitioners. “Reasons for refusal of the influenza vaccine by an employee shall be documented by the infection control or employee health program.” COMAR 10.07.01.34(F)(5).
“Related institutions” are organized institutions, environments, or homes that: (1) maintain conditions or facilities and equipment to provide domiciliary, personal, or nursing care for 2 or more unrelated individuals who are dependent on the administrator, operator, or proprietor for nursing care or the subsistence of daily living in a safe, sanitary, and healthful environment; and (2) admits or retains the individuals for overnight care. Md. Code Ann., Health-Gen. § 19-301.
Institutions in this category must immunize employees against the influenza virus and pneumococcal disease. Md. Code Ann., Health-Gen. § 18-404. Employees are not required to receive a vaccination if: (1) the vaccine is potentially detrimental to the health of the individual intended to be vaccinated; (2) the vaccine is against the resident’s or employee’s religious beliefs; or (3) after being fully informed by the related institution of the health risks associated with not receiving a vaccine, the resident or employee refuses the vaccine. Md. Code Ann., Health-Gen. § 18-404.
The health and religious implications of § 18-404 are discussed in Sections 2 and 3 above. The third reason—the employee refusing the vaccine after being fully informed of the health risks associated with not receiving a vaccine—initially seems problematic for employers. However, this regulation permits employers to exempt employees who refuse the vaccine from the state requirement that all employees who work in related institutions be vaccinated. It does not prohibit an employer from requiring, under its own policy, employees to be vaccinated (of course, subject to requests for reasonable accommodations). It remains possible that an employee could rely upon § 18-404 to bolster a common law claim of wrongful discharge—although the authors would not anticipate a court being receptive to a refusal that is not grounded on some protected characteristic, particularly during this pandemic.
6. Special Considerations for Unionized Employers
Vaccination policies are mandatory subjects of bargaining. Accordingly, absent contractual authority granting unilateral employer implementation or extra-contractual evidence of a union waiver of its right to bargain over the policy, unionized employers must provide the union representing its employees with notice and an opportunity to bargain over a mandatory vaccination program prior to implementation.
First, a unionized employer should review its collective-bargaining agreement (“CBA”) to determine if it is privileged to act unilaterally. Typically, a CBA contains a management rights clause vesting in the employer the right to act unilaterally concerning delineated subjects. Recently, the National Labor Relations Board (NLRB) adopted the “contract coverage” standard when analyzing whether an employer’s unilateral action violates the National Labor Relations Act (NLRA). Under the “contract coverage” standard, an employer will not violate the NLRA if the change is “within the compass” or “scope” of the contract provision granting the right to act unilaterally.24 For example, where a management rights clause permits an employer to establish and revise rules relating to patient and employee safety, implementing a mandatory vaccination policy may be considered “within the compass” or “scope” of such a provision.
An employer should also examine its past practice, if any, concerning the implementation of mandatory vaccination programs. If the unionized employer has previously required mandatory vaccinations, and implemented such a program without bargaining with the union, the NLRB will analyze whether the employer’s action varies in kind and degree from what had been customary in the past.25 Accordingly, if an employer’s unilaterally-implemented mandatory flu vaccination program is determined not to vary in kind or degree to its mandatory COVID-19 vaccination regime, unilateral action will be permitted.
But even if the employer may act unilaterally, and thus does not have an obligation to bargain over the decision to implement a mandatory vaccination policy, it will still have an obligation to bargain the effects of the decision should the union request effects bargaining. Examples of possible effects bargaining subjects include the cost, if any, to employees in obtaining the vaccination, the frequency with which employees must obtain the vaccination, and whether employees may use working time to obtain the vaccination.
To encourage employees to get vaccinated many employers are offering incentives. For example, some employers have offered gift cards, monetary compensation, or leave to employees who provide evidence that they have been vaccinated. But unionized employers should be mindful to notify the union prior to implementing such incentives that affect employees’ terms and conditions of employment.
In summary, a unionized employer should first look to its CBA to determine whether it may unilaterally implement the mandatory vaccination program without first notifying and bargaining with the union. If no contractual authority exists, the employer should review any past practice of implementing or altering vaccination programs. If the employer is privileged to act unilaterally, either via an expansive management rights clause or waiver-by-inaction on the union’s part, the employer must remain mindful of its obligation to bargain the effects of its decision to implement the mandatory vaccination program, if requested to do so by the union. Finally, if the employer wishes to offer compensation or other benefits to its unionized employees an incentive to get vaccinated, the employer should exercise caution and first notify the union prior to implementation of the incentive.
Mandatory COVID-19 vaccination programs are permissible, but employers must remain cognizant of their legal obligations when employees refuse to become vaccinated, considering each objection individually to determine its merit and whether any accommodation must be made. Employers must also be aware that employees may make additional objections due to the fact that the vaccines were authorized pursuant to the FDA’s EUA process—although this concern should resolve itself when the vaccines receive full FDA approval. Additionally, unionized employers must consider bargaining obligations as they relate to mandatory vaccination programs.
About the Authors: Mr. Thoeni and Ms. White are partners at Shawe Rosenthal, LLP, a labor and employment boutique firm based in Baltimore, Maryland. Mr. Horton is a senior associate at Shawe Rosenthal. Ms. Green is a law student at the University of Maryland School of Law and a law clerk for Shawe Rosenthal.
- As described by the FDA, Emergency Use Authorization is a mechanism to facilitate the availability of medical countermeasures during a public health emergency, including the use of unapproved medical products when certain statutory criteria have been met. Emergency Use Authorization for Vaccines Explained, FDA (current as of Nov. 20, 2020), https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained.
- Employer incentives are beyond the scope of this article, but employers will generally be permitted to offer incentives of limited value that do not have the effect of discriminating against employees based on disability or religion.
- Jacobson v. Massachusetts, 197 U.S. 11 (1905).
- CDC Office for State, Tribal, Local and Territorial Support, Menu of State Hospital Influenza Vaccination Laws, at 1 (last visited Sept. 4, 2020), available at https://www.cdc.gov/phlp/docs/menu-shfluvacclaws.pdf.
- 21 U.S.C. § 360bbb-3.
- See, e.g., https://www.fda.gov/media/144414/download.
- Legaretta v. Macias, 2:21-cv-00179 (D.N.M. Feb. 28, 2021).
- Parks v. Alpharma, Inc., 421 Md. 59, 75-78 (2010).
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=. This Guidance also provides insight into medical inquiries and vaccination policies. A robust discussion of these issues is beyond the scope of this article.
- EEOC Informal Discussion Letter (Mar. 5, 2012), available at https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250.
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (current as of Dec. 16, 2020) available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
- But see Aila Slisco, CDC Indicates Face Masks May Be Better Covid Protection Than a Vaccine That’s 70% Effective, Newsweek (Sept. 16, 2020), available at https://www.newsweek.com/cdc-indicates-face-masks-may-better-covid-protection-vaccine-thats-70-effective-1532474.
- 29 C.F.R. §1605.1.
- CDC Press Release (July 14, 2020), available at https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html.
- Md. Exec. Order 21-03-09-01 (Mar. 8, 2021).
- See EEOC Press Release, (June 6, 2019), available at https://www.eeoc.gov/newsroom/memorial-healthcare-pay-74418-settle-eeoc-religious-discrimination-lawsuit (recognizing that wearing a mask is an acceptable reasonable accommodation for those with religious objections to flu vaccines).
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (updated June 17, 2020), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
- EEOC Press Release (Dec. 23, 2016), available at https://www.eeoc.gov/newsroom/saint-vincent-health-center-pay-300000-settle-eeoc-religious-accommodation-lawsuit#:~:text=%2D%20Saint%20Vincent%20Health%20Center%20will,(EEOC)%2C%20the%20federal%20agency; EEOC Press Release (Jan. 12, 2018), available at https://www.eeoc.gov/newsroom/mission-hospital-agrees-pay-89000-settle-eeoc-religious-discrimination-lawsuit.
- U.S. Bishop Chairmen for Doctrine and for Pro-Life Address the Use of the Johnson & Johnson Covid-19 Vaccine, U.S. Conf. of Cath. Bishops (Mar. 2, 2021), available at https://www.usccb.org/news/2021/us-bishop-chairmen-doctrine-and-pro-life-address-use-johnson-johnson-covid-19-vaccine.
- 877 F.3d 487, 492 (3d Cir. 2017).
- 29 U.S.C. 654 § 5(a).
- Centers for Disease Control, Interim Public Health Recommendations for Fully Vaccinated People (Mar. 8, 2021), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
- MV Transportation, Inc., 368 NLRB No. 66, slip op. at 1 (2019).
- See Raytheon Network Centric Systems, 365 NLRB No. 161, slip op. at 16 (2017).