Can we require our employees to get an Influenza vaccination or a COVID-19 vaccination once one becomes available?
This question has been looming for EMS providers around the country as we enter the Flu season in the face of an existing global pandemic. While the COVID-19 vaccine is still being developed and approved, it is anticipated that one will be available later this year or early in 2021. Of course, the Flu vaccine is available now and the CDC suggests it is more important than ever that individuals get vaccinated than in prior years due to the pandemic.
The short answer to the mandatory vaccination requirement is likely, yes. However, the right of employers to require vaccinations is not unrestricted. Additionally, mandatory vaccination programs can be unpopular with employees and employers should be prepared for push-back from some of their workforce. We know that there is a segment of the population who are anti-vaxers or who, according to a recent Gallup survey, stated that they would not get a new COVID-19 vaccination.
As with many things in the employment law context, employers must develop a comprehensive approach to instituting a mandatory vaccination requirement for their workplace and workforce. EMS leaders should consult with the public health and legal professionals in their jurisdiction for guidance.
EMS employees, as healthcare providers, are at a greater risk of exposure than employees in other professions. As such, it is critical that EMS employers have a comprehensive workplace safety program, including vaccinating employees against illnesses such as the Flu and COVID-19. This is consistent with the recommendations of the Occupational Safety & Health Administration (OSHA) that all healthcare providers are vaccinated against illnesses such as influenza. As the availability of a COVID-19 vaccination nears, there are several criteria that EMS leaders should consider as they develop their workforce vaccination plan.
An important consideration is understanding and articulating the objective reasons that your organization is instituting a workplace vaccination plan. One important step is evaluating the various job positions at the company and documenting the position-based criteria that objectively justify requiring vaccination. The key is that the vaccination be job-related and consistent with business necessity.
Additionally, ensure that your occupational workplace safety policies establish the process and procedure for an employee to request an exception from mandatory vaccination and the process for evaluating the request. This information should be kept as confidential, consistent all other employee medical information. Lastly, the policy must include anti-retaliation protections, including a prospective plan for monitoring related workplace actions.
Under the law, employers can require all employees to be vaccinated against the Flu or COVID-19 but there are a few limitations. These limitations include employees who are protected under the Americans with Disabilities Act (ADA) or the religious protections afforded to employees under Title VII of the Civil Rights Act (Title VII). The Equal Employment Opportunity Commission, who enforces both Title VII and the ADA has issued guidance on this topic in 2009 which was recently updated to reflect the current guidance in light of the COVID-19 pandemic.
ADA Medical Conditions
First, employees who have an ADA protected disability may be able to decline vaccination as a reasonable accommodation provided that it doesn’t create an undue hardship or constitute a direct threat to others. Under the ADA, an undue hardship is one that involves great difficulty or expense. A direct threat is “a significant risk of substantial harm to the health and safety of the employee or others”. Upon learning that an employee is seeking an exclusion from the mandatory vaccination, the employer needs to engage the employee in the interactive process to determine if there is a reasonable accommodation that it can provide that meets the employer’s legal obligation to provide safe workplace.
The EEOC’s guidance, which was updated recently due to the COVID-19 pandemic, addresses the direct threat standard. In the guidance, the EEOC states that the assessments by both the CDC and other public health authorities determine that the COVID-19 pandemic meets the direct threat standard under both the ADA and Title VII. However, this does not eliminate or excuse the employer’s obligation to take each request on a case-by-case basis. It is important that your human resources professionals are involved in all employer activity related to instituting and applying a mandatory vaccination program.
Under Title VII, an employee may be able to decline a mandatory vaccination program on the basis that it is inconsistent with their protected religious principles. Similar to the ADA, an employer is obligated to engage employees, requesting exemptions from a mandatory vaccination program, in the interactive process to determine if there is a reasonable accommodation that can be afforded to the employee. Unlike the ADA, the undue hardship standard under Title VII is substantially lower and involves “more than a de minimis cost”, or would constitute a direct threat to others.
The important take-away for employers is recognizing that the organization must have a clearly defined policy, that is communicated meaningfully, and is consistently applied. The policy must clearly state the organizational reasons that the policy is being adopted and the harms the policy seeks to prevent. Also, that there is a clearly defined process for requesting an exemption and that all requests are handled in a consistent manner. Further employees must be engaged in the interactive process, and all related aspects documented sufficiently. This includes the final decision regarding any requested exemption from the vaccination program. It is strongly recommended that all aspects of this process are maintained in a log to ensure the consistent and comprehensive handling of these requests. Failure to maintain a log often leads to inconsistent results and opens the employers up to substantial liability.
In some states, like California and New York, employees may not be discriminated against due to their external lawful political activities. While this is unlikely to be the basis for an employee’s declination of participation in an occupational vaccination program, some anti-vaxers view this as a political position. Employers in these states should consult legal advice by a licensed attorney in their state who specializes in employment law.
Employers who are instituting a mandatory vaccination program should fund this program and provide the vaccination at no cost to the employee. Many employers often look to their employer sponsored health plan to cover the costs of vaccination. Employers should be aware of any cost sharing or deductible amounts that the employee may be responsible for and offer to cover that cost.
Additionally, many employers have contracted with outside vendors, or have worked with their healthcare partners, to provide employee vaccinations on-site. This will ensure that all barriers to employees receiving vaccinations are removed.
Summing It Up
Employers have been wrestling with occupational vaccination programs for years as the various global pandemics, such as SARS and H1N1. In past years, many employers have taken a passive role regarding vaccinations by merely recommending employee vaccinations. While sounding quite cliché, we are in an unprecedented time and employers can no longer take a passive role regarding employee vaccination programs. This is not our typical Flu season and the impacts of this year’s Flu will likely be accentuated due to the COVID-19 pandemic. We can expect a COVID-19 vaccine in the coming months and EMS employers should be prepared for the issues that will most certainly arise.
As always, be sure to contact us for assistance with this and any other challenge your organization encounters.