Considerations for Employers Mandating Vaccines in a Post-EUA World

The FDA’s recent approval of the Pfizer-BioNTech COVID-19 vaccine has ushered in a new wave of employer vaccine mandates.  Private employers had the right to impose such mandates even when the three vaccines available in the U.S. – Pfizer, Moderna, and Johnson & Johnson – were available only under emergency use authorization (EUA).  This was made clear by a memorandum issued by the Department of Justice on July 6 and by the handful of court cases that addressed that issue. However, with a number of vaccine skeptics staking their arguments on the vaccines’ EUA status, many employers were hesitant to impose mandates – and potentially expose themselves to litigation (meritless as it may be) – until the vaccines were fully approved.  That day has come and, unsurprisingly, so have a flurry of employer vaccine mandates.

As more and more employers begin contemplating and adopting mandatory vaccine policies, they should be mindful of a few key issues.

  1. Booster Shots

The first issue is what it means to be “fully vaccinated” as the FDA moves toward authorizing booster shots.  If employers are adopting policies that require employees to be fully vaccinated, it’s important that the phrase be clearly defined.  According to the CDC, a person is fully vaccinated two weeks after his or her second dose of a two-dose series (Pfizer or Moderna) or two weeks after a single-dose vaccine (Johnson & Johnson).  However, the FDA has issued an EUA for booster shots of Pfizer and Moderna for certain categories of immunocompromised people, and the CDC has encouraged such individuals to receive a third dose.  There is an argument, then, that immunocompromised individuals who received one of the mRNA vaccines are not considered fully vaccinated until they have received the booster shot.

Although the CDC has not recommended booster shots for any other persons at this time, the Department of Health and Human Services has announced a plan to begin offering them to the broader community in fall of 2021.  Once the FDA issues an EUA for booster shots of Pfizer and Moderna for non-immunocompromised individuals, employers may wish to modify their vaccine mandates to require employees to obtain the third shot.

  1. Exemptions from Vaccine Requirements 

Mandatory vaccine policies must allow exceptions for employees who cannot be vaccinated due to a sincerely-held religious belief or because of a medical condition for which the vaccine is contraindicated.  The former are exempt under Title VII of the Civil Rights Act of 1964 (Title VII) and the latter are exempt under the Americans with Disabilities Act (ADA).  If an employee claims he/she cannot be vaccinated for one of those reasons, the employer is required to engage in an interactive process with the employee to determine whether there are any reasonable accommodations that would enable the employee to safely perform his or her job duties.  If there is a reasonable accommodation that would not impose an undue hardship on the employer, the employer must provide that accommodation.

  1. Frequent Testing as a Reasonable Accommodation

What constitutes a reasonable accommodation is fact-dependent and will vary from one employer (and one employee) to another.  However, a quick review of the vaccine mandates adopted by some of the country’s largest employers suggests that weekly testing is the most popular form of reasonable accommodation.  Specifically, those who cannot be vaccinated because of a sincerely-held religious belief or medical condition for which the vaccine is contraindicated are typically required to undergo weekly COVID-19 testing (and provide management with proof of a negative result); and wear masks and practice social distancing while on-site or performing work-related duties.

Large companies may choose to offer on-site testing for those who cannot be vaccinated to minimize the cost and inconvenience.  However, providing on-site testing may not be a viable option for smaller employers with only a handful of unvaccinated employees.  In those cases, employees typically undergo testing on their own time and at a location of their choosing.  The question, then, is who pays for that testing?

Most insurers will not cover the cost of ongoing testing that is mandated by employers in asymptomatic individuals.  Thus, either the employee or the employer is going to have to eat the cost.  If the employer has made vaccination or regular testing a condition of employment, and an employee is exempt from the vaccination requirement under Title VII or the ADA, then the employer must cover the cost of that employee’s COVID-19 tests. Under such a policy, most employees have the option of being vaccinated at no cost.  Those who are exempt due to a religious belief or medical condition were effectively foreclosed from the vaccination option.  The ADA prohibits employers from discriminating against a qualified individual with a disability with regard to the terms and conditions of employment, and Title VII prohibits discrimination on the basis of religion.  Requiring certain employees to pay for weekly testing because of their religion or medical disability would violate these laws.

On the other hand, if an employer’s policy allows employees to choose between vaccination and regular testing, and some employees declined to be vaccinated for non-exempt reasons, the employer has a much stronger argument for requiring those employees to absorb their testing costs. Of course, this could create tension between employees undergoing testing for exempt reasons and those who simply preferred frequent testing over vaccination. For that reason, employers may find it preferable to create policies that do not permit testing as an alternative except for employees who are exempt from vaccination requirements.

Finally, employers that offer frequent testing as a reasonable accommodation for employees who cannot be vaccinated should consider whether they must compensate those employees for the time spent undergoing testing. The Fair Labor Standards Act requires employers to compensate employees for time spent performing tasks required for the job, and state and local laws may impose even stricter requirements.

Jackson & Campbell is prepared to advise employers on these important policies and to handle accommodation requests.

This summary is not intended to contain legal advice or to be an exhaustive review. Employers navigating the pitfalls of vaccine and testing mandates should contact Erica L. Litovitz, Esq. or another member of Jackson & Campbell’s Employment Law Practice Group for more information.