By Elizabeth Schallop Call and Yvonne Malino

ALEXANDRIA, Va.—On November 9, Pfizer made history by presenting preliminary data indicating that its COVID-19 vaccine was over 90 percent effective. On November 16, Moderna made a similar announcement about its own vaccine. Both Pfizer and Moderna have applied for emergency approval by the U.S. Food and Drug Administration, with Pfizer’s vaccine being the first to win FDA approval. An additional 52 pharmaceutical companies currently are in various phases of testing as part of the race to produce a safe and effective vaccine to the coronavirus.

Employers who have navigated the array of health and safety requirements during the pandemic are now considering whether they can require their employees to get the vaccine to continue to perform their work in or return to the workplace. While we are waiting for specific guidance on this topic from controlling federal and state agencies, prior guidance indicates that mandatory vaccination policies generally are permissible during a pandemic (subject to limitations under federal and state laws). Mandatory vaccination programs also are not new. For example, it is not unusual for employers in the medical field to implement such policies in the context of the influenza vaccine.

However, current guidance makes clear that employers must permit two limited but significant exceptions to any mandatory vaccination policy. Employees who refuse to take the vaccine on the basis of a medical condition or sincerely-held religious belief are entitled to request a “reasonable accommodation” from getting the vaccine. Under federal law or applicable state laws, an employee may have a legal right to decline to take the vaccine, and the employer must consider and provide, if appropriate, a reasonable accommodation to allow the employee to maintain an equal opportunity to perform the essential functions of the job or enjoy equal benefits and privileges of employment.  

In these circumstances, potential accommodations may include offering an alternative form of the vaccine that does not include objectionable ingredients or ingredients that could trigger an employee’s medical condition (such as a vaccine that does not contain egg, swine or fetal cell products), increased use of personal protective equipment, modification of duties to remove at-risk activities, or temporary or permanent transfers to other positions or work areas (such as permitting an employee to telework). An employer may deny an accommodation request only if fulfilling it poses an “undue hardship,” as it is defined by the applicable law. As a best practice, employers should consult with an experienced legal practitioner prior to denying requests for accommodations with respect to mandatory vaccine programs.

Given the unique situation presented by the COVID-19 pandemic, we may see additional guidance regarding implication of a mandatory vaccination program from, for example, the U.S. Equal Employment Opportunity Commission (EEOC) which enforces federal non-discrimination laws. Specific to the COVID-19 pandemic, the EEOC has acknowledged that employers may permissibly implement certain medical testing and other screening measures that applicable federal law would otherwise prohibit, given the “significant risk of substantial harm” to others posed by COVID-19. The EEOC has not yet stated how it would view a mandatory COVID-19 vaccine policy.

Even given the limitations of a mandatory vaccination program and lack of specific guidance from federal and state agencies, a clear benefit of requiring the vaccine for all employees in the workplace is the generation of confidence and trust in the employer’s efforts to maintain a safe workplace. To do so in a compliant manner, employers should be prepared for the administrative burden involved in implementing a clear, consistent and well-executed policy, and remain flexible to changes and guidance offered by federal and state agencies. Note, as an alternative, employers may choose not to mandate the vaccine, and encourage it instead, which may circumvent some of the administrative hurdles of a mandatory policy, and still yield positive results, depending on employees’ willingness to vaccinate and sustain other necessary safety precautions while the virus remains a threat.

For employers considering a vaccine mandate, here are seven tasks worth undertaking:

1. Carefully consider and document business justifications for a mandatory policy and the positions or departments for which the mandatory vaccination program is applicable. Ensure that any vaccine mandate is based upon objective facts and related to job duties and workplace needs and identify positions or alternative work arrangements which would not require mandatory vaccination.
2. Before rolling out a mandatory vaccination requirement, clearly communicate the process for employees to request accommodations. A thoughtfully-written vaccination policy should describe that process or reference existing accommodation processes, so employees understand where to turn if they need to ask for an accommodation. Then, be prepared to review accommodation requests and engage in what will be a fact-intensive and interactive process. Managers and human resources professionals should be trained to recognize and respond to requests for accommodation, even where the employee does not use the word “accommodation.” 
3. The vaccination program should consider all applicable legal requirements, be clearly communicated to employees and uniformly enforced. To the extent the vaccination is a requirement to perform the employee’s job, employers should consider reimbursement requirements under applicable state law. Also, employers may be obligated to pay employees for time spent getting the vaccination if outside of working time.
4. Any adverse physiological reactions to an employer-mandated vaccine could lead to a workers’ compensation claim. Employers should review state workers’ compensation laws and current employer insurance policies. 
5. Where the workforce is unionized, employers must consider any applicable collective bargaining agreements to determine the extent of their duty to bargain with the unions regarding a vaccine program.
6. Any medical information must be kept confidential and maintained separate from an employee’s personnel file.
7. Finally, federal and state authorities are likely to issue guidance that could alter relevant standards under the applicable laws. Employers should stay alert for any such recommendations and adjust their vaccination program accordingly.

Steptoe’s cross-disciplinary team of lawyers can help with these employment law issues and the countless legal and policy issues that companies are now navigating.

Elizabeth Schallop Call is a partner with Steptoe & Johnson LLP specializing in labor and employment law and government contracts. Yvonne Malino is an associate at Steptoe & Johnson, specializing in commercial litigation, labor and employment law, judgment enforcement and asset recovery. 

Coronavirus Resources

NACS has compiled resources to help the convenience retail community navigate the COVID-19 crisis. For news updates and guidance, visit our coronavirus resources page.