One year after the public health emergency caused by COVID-19 began, hope is on the horizon as vaccine production and distribution increases and eligibility criteria for vaccinations expands. With many employees teleworking during the pandemic, employers are starting to consider post-pandemic working arrangements, including the return of employees to the workplace. As employers think about this critical issue, there are a number of questions employers must consider: How do employers respond to employees that are eligible for vaccination, but decline to be vaccinated? Can unvaccinated employees return to the workplace, and, if so, under what conditions? Should teleworking employees who refuse vaccination be permitted to continue teleworking? While there are no simple answers to these questions, this blog explores the issues implicated by these questions and provides guidance for employers considering these subjects.
Eligible Employees Who Decline Vaccinations
There are three statutory bases under which an individual may be legally entitled to refuse vaccination: (1) a disability/medical condition; (2) sincere religious belief; and (3) on the basis that the vaccine is being distributed under the Emergency Use Authorization. The first two bases arise from the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the California Fair Employment and Housing Act (FEHA). The third basis arises from the Food, Drug & Cosmetic Act (FD&C Act), and the protections afforded thereunder.
Under the ADA, Title VII, and FEHA, employers may require all employees to be vaccinated, but with important limitations. For example, employers must provide reasonable accommodations to employees who because of a disability/medical reason cannot be safely vaccinated, or if vaccination conflicts with a sincerely held religious belief. When an employee presents documentation establishing a disability or describes a sincerely held religious belief, the employer should engage in the interactive process to determine how the employee can be reasonably accommodated to minimize the employee’s risk of exposure –and spread – of COVID-19 in the workplace. Accommodations to consider are remote work, additional personal protective equipment, moving the employee’s workspace to be more isolated, and unpaid leave.
The third basis upon which an individual may refuse vaccination is based on the vaccines being distributed under an Emergency Use Authorization (EUA) under to the FD&C Act. Under the EUA, individuals must be informed they have the right to refuse vaccination and the consequences of refusal, which is typically presented in an accompanying fact sheet. It is unclear what is meant by “consequences,” but it is likely referring to health consequences, not termination from employment. While there is no law indicating an employer is legally required to accommodate employees who refuse vaccination based on EUA, it would be risky for the employer to terminate or take adverse action against employees who exercise their rights under the FC&C Act to decline vaccination. At least one lawsuit has been filed by a public first responder employee in New Mexico seeking an injunction to prevent his termination on the basis that the county’s mandatory COVID-19 vaccination policy violates his rights under the FD&C Act. (Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 (D.N.M. Mar. 4, 2021).) Guidance from the EEOC explains employers’ obligations to reasonably accommodate employees who cannot be vaccinated because of a disability or religious belief, but is silent on refusals based on the EUA. But is it safe for those employees to return to the workplace? Does the employer need to accommodate them, including allowing telework? These are difficult questions, with many considerations and no easy answers.
The Return to Work of Unvaccinated Employees
The ADA permits employers to exclude from the workplace employees who pose a direct threat to the health and safety of other employees or members of the public. This standard presents two threshold questions: (1) does a non-vaccinated employee pose a direct threat to the health and safety of the workplace sufficient to exclude them from returning to work; and (2) if so, what, if any measures could an employer adopt in order to reduce the threat to allow the employee to return to work?
On one hand, the employer may be able to claim that employees who have not been vaccinated present a health and safety risk to other employees and/or members of the public, if the unvaccinated employees will come into contact them. The employer can use this as a basis to require the unvaccinated employees to telework or take leave. On the other hand, if that employer had unvaccinated employees in the workplace during the pandemic (such as before the vaccines were available) while following COVID-19 safety protocols, it may be hard to explain why now it was suddenly unsafe for unvaccinated employees to be in the workplace.
In addition, as more individuals become vaccinated, the risks from having unvaccinated employees in the workplace should diminish. For example, if only one employee is unvaccinated, and everyone else is vaccinated, the risk from one unvaccinated employee to the vaccinated employees should be relatively low. Employers, however, need also to consider morale. Even if employees have been vaccinated, they may feel nervous working in the same workspace as a non-vaccinated employee, especially if they have children or others in their household who have not been vaccinated, or have been vaccinated but are high risk for developing serious illness from COVID-19. It is unclear if unvaccinated employees would pose a direct threat to justify separating them from employment, and doing so could risk discrimination and retaliation claims. In addition, the direct threat assessment should be individualized to each unvaccinated employee; for example, a first responder that comes into contact with numerous members of the public and other first responders would likely pose a higher threat than an employee who works at a desk all day in their own office.
In order to minimize the risks to unvaccinated employees – and to others from having unvaccinated employees in the workplace — the employer should consider providing the same COVID-19 safety measures and reasonable workplace accommodations it has had in place, to reduce the threat level. The employer should discuss concerns related to COVID-19, and see if there are ways to allow the employee to work while minimizing risk to the employee and other employees/members of the public from the spread of COVID-19. These include providing additional personal protective equipment, moving the employee’s workspace to be more isolated, partitions between work areas, and even schedule changes to reduce the amount of employees in the work area at once or entering and exiting together. The employer is not required to adopt accommodations imposing an undue burden; the focus is accommodations allowing the employee to perform job duties safely for them and others.
Allowing Unvaccinated Employees Who Refuse Vaccinations to Continue Teleworking
Employees who decline to be vaccinated because of the Emergency Use Authorization or personal views about the vaccination who had been teleworking during the pandemic may request to continue teleworking. On one hand, employees do not have a right to their most desired accommodation, and there may be other accommodations that allow the employee to return to the workplace while ensuring everyone’s safety. If the employee is at high-risk for serious illness from COVID-19, there may not be any accommodations that allow that employee to return to the workplace. Employers will also need to consider how successful teleworking was during the pandemic; for example, if the employee was successfully performing their job duties and meeting their job expectations, it may be hard to justify refusing continued telework.
While things are now looking more hopeful, the reality is that COVID-19 will still be here for a while, and the COVID legal landscape concerning vaccinations, accommodations, and best practices is evolving. While there may not be clear answers to all questions relating to vaccinations and the workplace, the considerations described above should help employers assess risk and develop policies and practices best suited for their workplace.