Since COVID-19 vaccinations have received emergency use approval (EUA) by the Food and Drug Administration (FDA) and are being distributed in the United States, employers should evaluate whether they will implement mandatory vaccine policies in their workplaces and the legal and regulatory implications of doing so.

Employers should look at the risks associated with a mandatory policy versus those associated with a voluntary policy, and how these competing risks may affect their business practices.

If employers decide to make the vaccine mandatory, they will need to understand employees’ refusal rights, how refusal impacts a mandatory policy, and whether termination of employment is permitted in response to refusal.

If employers decide to mandate the COVID-19 vaccine, it is important for them to review the U.S. Equal Employment Opportunity Commission (EEOC) guidance on anti-discrimination laws pertaining to mandating a COVID-19 vaccination policy.

Most Wisconsin employers with 15 or more employees must adhere to EEOC regulations and any state laws to determine their rights as businesses and the rights of their employees.

Mandated Vaccine Policies

As a best practice, if an employer decides to mandate the COVID-19 vaccine in the workplace, the policies and procedures should reflect that decision. When deciding what the mandated vaccination policy will include, employers should begin by looking at:

• how the vaccine will be administered;

• procedures to follow for those that refuse the vaccination or cannot be vaccinated due to an exception;

• communicating the policy to employees; and

• employer considerations in making it mandatory.

It is important for employers to have clear policies in place for consistent workplace practices.

Vaccine Administration

Employers have various options when deciding how to mandate a vaccine for their employees.

One way is to administer the vaccine themselves or contract with a third party to administer the vaccination. The other option is to have an independent or outside party provide the vaccine, and then the employer would just require proof the vaccine was administered.

If the vaccination is administered by the employer or its third party, the employer must follow the ADA regulations to avoid asking questions that can elicit information concerning a disability.¹ If an employer decides to allow the employee to use an independent or outside provider, then the employer would not be the party asking questions that could elicit disability information, thereby avoiding violating ADA regulations.

The EEOC further advises that when an FDA-approved vaccine is administered, the administration of the vaccine itself is not considered a medical exam and, therefore, the ADA regulations do not apply. If the employer requests medical information, then at that point the ADA regulation would apply. Under the ADA, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”²

Medical information is normally obtained during the pre-screen vaccination questions used to determine whether individuals can receive the vaccine. Employers should understand that when these questions are asked, the medical examination provision of the ADA can be triggered, because questions are being asked that could elicit a disability-related response. Even if a third-party provider asks pre-screen vaccination questions, it can be construed as a medical examination by employer, as they contracted with the third-party to provide the vaccinations.

Normally an employer is only allowed to ask those types of questions under two circumstances:

• if doing so under the “job related and consistent with business necessity” standard of the ADA; or

• if the employee receives the vaccine from an independent provider and only has to provide proof of vaccination to the employer absent any medical information.

The “job related and consistent with business necessity” standard allows employers to pre-screen vaccination questions and not violate the employees’ rights only if it is based on an objective belief that, if an employee does not answer the questions and cannot be vaccinated, it will pose a direct threat to other employees in the workplace.³

The pre-screen vaccine questions asked by the independent provider are not considered a violation of the ADA standard, because the employer did not contract with the independent provider, had no access to disability information, and was not screening the employee.

Refusals or Exemptions

Employees can refuse to be vaccinated. However, just because they refuse does not mean they can be terminated.

Two specific federal exemptions that employees can claim are a disability or religious exemption. Wisconsin does not have any specific waivers or exemptions for adults, only school-aged children. However, under Wis. Stat. section 252.041, during a public health emergency, individuals can be ordered to receive a vaccination unless the vaccination is reasonably likely to lead to serious harm to the individual or unless the individual, for reasons of religion or conscience, refuses to obtain the vaccine.⁴

Wisconsin has not expressed, up to this point, that it will exercise its power under this statute.

Disability Exemption

The ADA prohibits discrimination on the basis of disability. If an employee is unable to be vaccinated due to a medical reason or refusal to answer the pre-vaccination questions, employers cannot remove them from the workplace without trying to first find an accommodation that does not create an undue hardship.

An undue hardship would be any accommodation for an employee that creates a significant difficulty or expense to the employer.⁵

However, the ADA does allow employers to use the direct threat standard, preventing employees from posing a direct threat to the health and safety of other employees. If an employer uses the direct threat standard, they would be able to remove the employee from the workplace to prevent “significant risk of substantial harm” to other employees if they are unable to reduce to an appropriate level.⁶

COVID-19 has been determined by the ADA as a direct threat to the health and safety of others.⁷ Even though it has been determined a direct threat, employers should always do an individual assessment using four factors to make the determination. These four factors are:

• what is the duration of the risk;

• what is the nature and severity of the potential harm;

• what is the likelihood that a potential harm will occur; and

• what is the imminence of the potential harm.⁸

If an employer finds that an unvaccinated employee is a direct threat in the workplace, they can exclude the employee from the workplace, but the employee cannot be terminated without determining if there is a reasonable accommodation that can be made (working remotely, if applicable) or if the employee is eligible for leave under federal programs or employee policies.

Religious Exemption

Religious exemptions must be made under Title VII of the Civil Rights Act. This means that employees with sincerely held religious beliefs cannot be required to vaccinate. When this exemption applies, employers must provide an alternative means to the vaccination requirement unless it poses an undue hardship under Title VII.

During COVID-19, undue hardship may not be as difficult for employers to establish as compared to before the pandemic. There are different resources employers may rely on to determine undue hardship, such as the requirements under the Centers for Disease Control and Prevention (CDC) or the Occupational Safety and Health Administration (OSHA).

If an employer is unable to accommodate an employee with a sincerely held religious belief, the employer is able to exclude the employee from the workplace, which again does not necessarily mean the employee can be terminated. The employer must review all other rights prior to making any decision.

Communication of Mandatory Vaccine Policy

Employers should train their supervisors and managers on how to reasonably identify when an employee is requesting an accommodation and to whom accommodation requests should be directed. Employers should try to be flexible in assisting employees with finding reasonable accommodations for their exemptions.

Employers should also be proactive in communicating with employees. Employers should explain employees’ rights regarding the vaccine, the safety of the vaccine, and the employers’ vaccination policies.

Employer Considerations

Although employers now have the option to require a mandatory vaccine for their employees, it is necessary for employers to consider all avenues to provide the safest work environment for their employees. Making a mandatory vaccination policy for some employers may not be the most effective route to providing that environment.

There may be more risks with implementing a mandatory policy versus a voluntary policy, so it is important that employers research and identify all their options and the legalities that come with the different choices.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

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Endnotes

¹ See U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (2020).

² Id.

³ Id.

⁴ Wis. Stat. § 252.041 (2001).

⁵ EEOC, What You Should Know About COVID-19.

⁶ Id.

⁷ Id.

⁸ Id.