While the Covid virus continues to rage throughout the world and a number of pharmaceutical makers have received “emergency use authorization” from the FDA to make vaccines available to the public, Americans’ willingness to get inoculated has slipped.

National survey results published in the Journal of the American Medical Association (JAMA) Network Open show that the number of people who say they are some what or very likely to seek COVID-19 vaccination fell from 74 percent to 56 percent from April to December. The primary concern is the medication has been developed too quickly and is it safe and/or effective?

Many employers have started considering policies and plans for employees to return to work that ensure their workers’ health, while making possible accommodations to those who object to getting the vaccine. The key to a vaccine mandate or heavily encouraged and supported vaccine program is being prepared, including being prepared to address employees’ distrust of the vaccine.

What the EEOC has to say about workplace vaccine policies

The Equal Employment Opportunity Commission (EEOC) the federal agency responsible for enforcing federal laws, issued guidance on Dec. 16, 2020, on workplace vaccination questions. While the guidance does not outright prohibit businesses from mandating their employees get inoculated for COVID-19, it does make clear, an employer’s policies must comply with the American with Disabilities Act (ADA) Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws. The EEOC cautions employers terminating employees who refuse to be vaccinated, as they may be required by law to provide an exception.

Exemptions under federal law include Title VII of the Civil Rights Act, which allows employees to refuse on the basis of their sincerely held religious beliefs and the Americans with Disabilities Act, which provides exemptions for employees who object as a result of a disability or a medical condition. Similarly, state Human Rights Acts, which provide protections for employees based on religion, medical conditions and other reasons could also prohibit an employer from terminating employees who are not vaccinated.

For employers considering a mandate

For any employer who is considering mandating or strongly encouraging employees be vaccinated, the following is a list of legal and practical considerations:

First start with developing a policy. This will not only help employees, managers and supervisors navigate difficult situations but will also is a good education tool;
Whether an employer adopts a mandate or takes a softer approach to simply encouraging employees to get vaccinated, any refusal by an employee, must be met with the employer understanding “why”. Engaging in a dialogue with employees who refuse could save you a lot of money on attorney’s fees and damages claims for wrongfully terminating an employee;
There are numerous legally protected reasons for employees to refuse a vaccine or refuse to answer health questions prior to receiving a vaccine that may allow the employer to exclude the employee from the workplace, but does not give employers a right to automatically terminate an employee. Employers considering mandating vaccines should give very serious consideration to this issue. If a significant portion of your workforce refuses to comply, the employer will be put in a very difficult position of either adhering to the mandate and terminating or furloughing employees or deviating from the mandate for certain employees. Deviations made for employees who are valued and those who are not due to undocumented performance issues, can increase the risk of discrimination claims.
As part of your policy, create a committee of three or more individuals to decide on requests for medical, religious or other exceptions or consequences for refusals. This ensures legal compliance, consistency and fairness in the decision-making process.
If the employer mandates vaccinations instead of providing vaccines on a voluntary basis, the CDC does recommend certain health related questions be asked and responded to prior to the vaccine being administered. The ADA only allows an employer disability-related screening inquiry that is “job-related and consistent with a business necessity”. To meet this standard an employer would need to have a reasonable belief, based on objective evidence that an employee who does not answer the question and therefore does not receive a vaccine will pose a direct threat to the health or safety of themselves or others, prior to excluding them from the workplace.
A direct threat to justify excluding an employee from the workplace involves an individualized assessment of four factors:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
Even if the employer can establish “a direct threat” to exclude an employee from the workplace, that does not mean you can terminate them. You need to assess whether other options for the employee to work are available and carefully assess other federal or states laws, which protect the employee, before terminating. Consult with counsel prior to firing any employee for refusing to answer vaccine questions or refusing to be vaccinated, even if there are no religious, medical or other obvious legal reasons for the refusal.
If the vaccine is voluntary, and the pre-screening, disability related questions are voluntary, and if there are no consequences to the employee for not responding to the questions or refusing the vaccine, a disability related screening question can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. Also, the requirement does not have to be met, if the disability related screening questions are asked by a third party administering the vaccine, who does not have a contract with the employer, such as a pharmacy or other health care provider.
Any disability-related information received from an employee by the employer directly or through a third party, with whom the employer has a contract with must be stored in a separate medical file maintained by HR for each employee. This information must be separate from the regular HR file.
The Genetic Information Non-discrimination Act (GINA) prevents any questions about a family member’s medical history. Health care providers can ask these questions, but not employers.
Asking an employee to show proof of receipt of a COVID-19 vaccination is not a disability related inquiry; however, follow-up questions as to “why” may be. If an employer only wants to request proof of vaccination, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

For employers considering a voluntary program

If an employer does not have a vaccine mandate, but instead adopts a program of strongly encouraging employees to get vaccinated, an employer may want to:

Make the vaccine easily accessible. Offer vaccine clinics at the worksite administered by trained health care professionals;
Cover the cost of the vaccine. North Dakota requires employers who mandate a medical exam or to “furnish medical records” to pay the costs N.D. Cent. Code § 34-01-15. Although a vaccine is not technically a “test” or an “exam”, employers mandating a COVID vaccine should pay for the costs of it.
Provide education on vaccinations. Recorded video presentations or written materials can be made available at low cost and may be conveniently viewed when the employee has time. Employees will be required to be paid for their time if review of information is required. Consult a legal expert before deciding employees do not need to be paid.
Provide additional PTO, financial incentives or gift cards to employees who get vaccinated. Incentives should be relatively minor, as generous incentives will affect whether the program is really “voluntary”. Remember the IRS does not have any “de minimis” exceptions for items of value provided to employees, so benefits provided will be subject to withholding. Also to not run afoul of the anti-discrimination laws, if an employee is unable to be vaccinated because of religious reasons or a disability, please discuss with legal counsel before automatically excluding them from incentives.
Provide paid time off for employees who get the vaccine and may need some time off to recover from potential side effects.
Communicate clearly and often with employees and help them understand how vaccinations will make for a safer workplace. Lead by example: management should be vaccinated first.
If some or all your workforce is covered by a Collective Bargaining Agreement, you may have to bargain with their union prior to mandating a vaccine program. Review your Collective Bargaining Agreement and consult with legal counsel.

There are many practical considerations and legal requirements to developing protocols and policies related to employee vaccines. Careful consideration should be given to medical inquiries of employees in this context. In addition, exceptions for employees who require medical or religious accommodations need to be handled appropriately. Finally, employees who refuse vaccinations for personal reasons should not be immediately terminated, unless they meet the criteria of posing a “direct threat” under the ADA, which is a fairly high standard, and no other working arrangements are available.

These are complicated decisions that require thoughtful execution and sound legal guidance to avoid creating business risks.

Beverley Adams represents employers and executives in the full range of employment-related matters, providing guidance on items, such as employment investigations, disciplinary matters, employment contracts and union labor negotiations. She litigates in federal and state trial courts in North Dakota and Minnesota. You can reach her at [email protected].