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December 4, 2020

Stroock Client Alert

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

COVID-19 vaccines are currently undergoing regulatory approval and subsequently will be distributed—likely in early 2021, but perhaps even sooner.  Pfizer Inc. was first to announce that its vaccine was more than 90% effective.  Then, Moderna, Inc. reported that its vaccine was over 94% effective in trials.  Most recently, AstraZeneca plc has advised that its version, developed in conjunction with the University of Oxford, could be up to 90% effective, although subsequent questions about the clinical trial methodology have raised issues regarding the efficacy rate and may delay approval.  This, of course, is a welcome development, particularly for companies as they grapple with providing a safe workplace in the face of the current spike in COVID-19 cases. The prospect of an efficacious and safe vaccine leads employers to ask whether or not they can require employees to be vaccinated.

Mandatory vaccination programs generally are lawful and are not uncommon in certain industries, such as health care, especially for those employees with direct patient contact.  However, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (the “ADA”), and analogous state and local laws require that mandatory vaccination programs provide for exemptions.  

At the start of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (the “EEOC”) recognized that COVID-19 satisfied the ADA’s “direct threat” standard—that is, COVID-19 posed a “significant risk of substantial harm” to others.  As a result, during the pandemic, employers have been permitted to conduct medical screens, such as temperature checks and health-related questionnaires, normally prohibited by the ADA and related regulations and interpretive guidance. 

The EEOC addressed mandatory vaccination programs in 2009 in response to the H1N1 (“Swine Flu”) pandemic.  There, the EEOC squarely concluded that employees may be entitled to an exemption from a mandatory vaccination program based on medical reasons under the ADA or a sincerely held religious belief under Title VII, even during a pandemic:

Question:  May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

Answer:  No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA). 

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.  *As of the date this document is being issued, there is no vaccine available for COVID-19.  See, EEOC Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, Question 13

As set forth above, when the EEOC issued its Pandemic Preparedness in the Workplace Guidance in the Spring of 2020, there was no vaccine available for COVID-19.  Subject to FDA approval and ramping up of production and distribution capability, this appears to be changing soon.  Might the EEOC and state and local anti-discrimination agencies treat COVID-19 differently than the Swine Flu because COVID-19 is so contagious?  In this regard, think community spread and potential adverse outcomes of not taking the vaccine as a direct threat to health and safety of co-workers.  While a departure from the EEOC’s  Swine Flu guidance is possible, it is difficult to predict whether this will occur. 

In the meantime, employers should take steps to prepare, such as deciding if mandatory vaccinations are appropriate for their workplace.  If an employer opts for a mandatory vaccination program, it must anticipate requests for accommodations based not only on medical and religious grounds, but also from those who object for other reasons, such as general opposition to vaccines or questions about the safety of the COVID-19 vaccines given the speed with which they have been developed, tested, and likely approved for distribution.  

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For More Information: 

Howard Lavin

Elizabeth DiMichele 

GraceAnn Caramico 

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.

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