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Can Companies Legally Mandate Vaccines for Their Employees?

In the U.S., the Equal Employment Opportunity Commission (EEOC) recently announced that employers can require that employees returning to the office get vaccinated against COVID-19. But what does that mean in practice? Does it refer to all employees? What about those working in a hybrid set up? What are the legal implications?

BRINK turned to Jessica Kuester, an employment benefits lawyer at Ogletree Deakins.

KUESTER: In its ruling, the EEOC says companies are allowed to mandate vaccines — so long as certain requirements are met. Most notably, the EEOC says that the mandate must be related to the employee’s job and the company’s business functions. If the employee’s vaccination status will not affect the employer’s business in any way, then the employer might not be able to mandate vaccination.

In addition, if an employee cannot meet the vaccination mandate because of a disability or a sincerely held religious belief, the employer may need to offer an accommodation. The EEOC gives some ideas for reasonable accommodations, including mask wearing and telework, but it encourages employers to engage in an individualized assessment with each employee requesting an accommodation to find the best situation for everyone. 

BRINK: Could you give an example of what you mean by needing to be related to the business? 

KUESTER: Sure. I would say for employees who are working 100% remotely, requiring vaccination for those employees may not be job-related or related to the company’s business functions, because those employees aren’t coming into contact with anyone as part of their job. 

But for an employee who has lots of direct contact with customers and with other employees, it may be easier to make the argument that those employees should be vaccinated as part of their job to help control the spread of the virus. It really just depends. 

What About a Hybrid Working Situation?

BRINK: A lot of companies are going to be operating a hybrid workforce, in which employees are partly at home and partly coming into the office. How does the ruling relate to those kinds of workers?

KUESTER: The EEOC did not directly address what kinds of things will definitely make an employee a good candidate for a vaccine mandate versus a bad candidate for a vaccine mandate. 

Instead, employers are encouraged by the EEOC to look at their workforce as a whole, and positions individually, and see whether those employees should be subject to a vaccine mandate or not. 

BRINK: Couldn’t it open employers up to the risk of lawsuits? If an employer decided, for instance, that someone coming into the office twice a week must have a vaccine, the employee could take a different view and sue.

KUESTER: That’s a possibility, but the EEOC really does set forth the framework of how to think about this if the vaccines are going to be mandated by the employer. The EEOC says, first, think about whether you can even have a mandatory vaccine policy. Because if the vaccine policy isn’t directly related to the business functions, then maybe employers can’t even have that mandatory policy. 

And then, if the employer has determined that the policy is mandatory, then they should be thinking about whether accommodations are necessary for employees who can’t be vaccinated. There’s a path to follow, so employers will want to look at that EEOC guidance and determine how best to follow that path to reduce their risk.

There’s nothing in the EEOC guidance that says these types of jobs should be subject to a vaccination policy and those types of jobs shouldn’t — it’s really up to the employer.

BRINK: But it doesn’t address the employee who just doesn’t want to get a vaccine. 

KUESTER: That’s correct, because that’s not generally what the EEOC covers. The EEOC covers employment-related laws and the way in which those interact with people who have disabilities and need religious accommodations. 

It doesn’t address people who simply don’t want to get the vaccine because they have some other reason for not wanting to be vaccinated that isn’t connected to a disability or a religious belief.

BRINK: Has the EEOC made a determination about whether someone needs to have had one or two shots? 

KUESTER: The EEOC guidance doesn’t delve into the differentiation between fully vaccinated, partially vaccinated, or how many shots someone has had. The CDC determines what it means for an individual to be considered fully vaccinated, and the EEOC defers to the CDC on that determination. 

The EEOC guidance addresses employment-related issues only and doesn’t get into whether there’s a difference between someone who’s had one shot versus two shots and how that should look. 

BRINK: Does the type of work make any difference, whether it’s a factory or an office for example?

KUESTER: Only indirectly does the type of work make a difference, because employers have to show that mandatory vaccines are consistent with the employer’s business needs.

Certain types of jobs might lend themselves to showing the business need more easily. For example, positions that require an employee to interact with large numbers of customers might be a better candidate for a mandatory vaccine policy than a position where the employee sits in a private office all day. The analysis is so dependent on each type of position that it’s a little difficult to make generalizations as to what specific types of work would be more or less risky.

There’s nothing in the EEOC guidance that says these types of jobs should be subject to a vaccination policy and those types of jobs shouldn’t. It’s really up to the employer to determine what that policy should look like for their workforce. The type of work doesn’t directly matter, only that certain types of work might lend themselves more easily to employers performing that analysis and determining that it fits within the EEOC’s guidance.

BRINK: Given that there is so much vagueness around the EEOC ruling, do you think that companies will be reluctant to mandate this?

KUESTER: I think companies are reluctant to institute mandatory vaccination policies, because of the analysis required to show that the vaccine is job-related and consistent with the employer’s business necessity and that employees who are unvaccinated would pose a threat to the workforce. 

That kind of analysis is difficult for a lot of companies to get through. And so, in my experience, most companies are going with a voluntary vaccination program, sometimes incentivized and sometimes not. I’m not sure that the guidance that was recently issued changes the analysis around what needs to be done in order for a company to feel comfortable with instituting a mandatory vaccination policy.

BRINK: Are they still allowed to impose a mandatory mask policy in their offices? What’s the legal status of that?

KUESTER: It’s similar to everything else. The company can have a mask mandate as long as it’s something that is job related and makes sense for the business. If there’s someone who, for whatever reason, would say, “I have a disability that prohibits me from wearing a mask,” or, “I have some religious reason and I wouldn’t be able to wear this,” then the employer should think about whether an accommodation is necessary in that situation.

Jessica Kuester

Of Counsel at Ogletree Deakins

Jessica Kuester practices in the area of employee benefits at Ogletree Deakins. She has experience representing employers in a wide variety of compliance areas, including health plans and retirement plans. She advises employers on compliance with the Affordable Care Act, HIPAA, COBRA, and ERISA. With extensive experience in drafting health plan documents, Jessica has designed compliant 125 cafeteria plans, HIPAA programs, and “wrap” health plan documents. She has also provided HIPAA training for employers’ workforces.

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