How COVID-19 has affected the workplace

With over 140,000 new cases of COVID-19 as of January 31, 2021 and employees returning to the work, one big question looms in our minds: “Can an employer force employees to take COVID-19 vaccinations?”

Employers should consult legal counsel and look to reliable sources to comply with evolving guidance from public health authorities.

 

Can Employers Force Employees to get the COVID-19 Vaccine?

By Sarah Kim, JD

With over 140,000 new cases of COVID-19 as of January 31, 2021 and employees returning to the work,[1] one big question looms in our minds: “Can an employer force employees to take COVID-19 vaccinations?”

Employers should consult legal counsel and look to reliable sources to comply with evolving guidance from public health authorities.

While employers may require their employees to take both COVID-19 tests and vaccines because of the direct threat COVID-19 poses on the health and safety of those in the workplace, employers should be conscious of running afoul of potential discriminatory practices in pre-screening questions, reasonable accommodations and assess the legal implications under the law and their office policies.

Pfizer and Moderna report that their COVID-19 vaccinations are both safe and effective. This, along with the Food and Drug Administration’s (FDA) emergency use authorization of both vaccinations, have employers considering whether to require vaccinations as a safety measure.[2]

Navigating the intricacies and implications of applicable laws can be challenging with the wide range of existing laws in place.

Relevant laws and regulations include the Americans with Disabilities Act (“ADA”)[3] and Title VII of the Civil Rights Act (which prohibits discrimination based on race, religion, sex and pregnancy) to the Affordable Care Act (“ACA”) and the COVID-19 stimulus bill –the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).[4] In addition to the large body of existing laws, these measures continue to change along with growing needs arising from the COVID-19 pandemic.

As the new year begins, many COVID-19 related laws that ended on December 31, 2020 will not return without congressional amendment. For example, the Families First Coronavirus Response Act (FFCRA),[5] which provided for employee leave, terminated at the end of last year. However, some parts of the Act continue to survive. The Consolidated Appropriations Act continues employer tax credits for paid sick leave and expanded family and medical leave that employers may voluntarily provide to employees until March 31, 2021.[6]

Laws and agency guidance continue to evolve and employers should have a comfortable understanding of compliance as well as potential risks before enforcing new COVID-19 procedures in the workplace.

 

What is the Americans with Disabilities Act (ADA)?

ADA legislation protects the civil rights of those with disabilities. In relevant part, the ADA does not allow an employer to make a disability-related inquiry to an employee and does not require an employee to submit to a medical examination except under particular circumstances.[7]

One of these circumstances allows an employer to conduct mandatory medical tests of employees if the exams are job-related and consistent with business necessity.[8] An employer may require both initial and periodic COVID-19 testing because of the direct threat an employee may pose to others.[9]

 

What is the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)?[10]

The CARES Act, a stimulus bill enacted March 27, 2020, is best known for initially providing Economic Impact Payments to households in the U.S.[11]

Related to the ADA, both are EEO laws, the CARES Act also established a method for determining the amount ACA health insurers and group plans must pay health care providers for COVID-19 testing required by the FFCRA.[12] A person who tests positive for COVID-19 under these provisions cannot be denied coverage or charged a higher premium in ACA health plans.

 

What is the Emergency Use Authorization (“EUA”)?

The EUA allows the FDA, after meeting certain criteria, use of unapproved medical products and medical measures, like vaccines, during public health emergencies.[13] 

The COVID-19 vaccines are available because of the EUA enabling its use as a public health emergency measure.

 

Mandatory COVID-19 Testing:

In order to avoid liability and a potential discrimination claim, employers should ensure that the employees from whom they require test results are not a targeted class or grouping.

Employees that refuse to take a COVID-19 test on the basis of religion or disability may have a valid defense. Employers should seek to provide reasonable accommodations where possible. Under Title VII of the Civil Rights Act of 1964, employers are required to accommodate an employee’s “sincerely held” religious beliefs that can be handled without “undue hardship.” An “undue hardship” exists where there is more than a minimal cost on your operations. Refusal to take a COVID-19 test creates an undue hardship because of the threat it poses on others.

 

Mandatory COVID-19 Vaccination:

Employers may require vaccine immunization of their workers without violating the Americans with Disabilities Act (ADA), Title VII or other federal anti-discrimination laws. Recent EEOC guidance indicated its position related to mandatory flu vaccines likely would apply to a potential COVID-19 vaccine. As with the flu vaccine or COVID-19 testing, as discussed above, employers should try to accommodate any refusals due to religion or disability.

Further, employers should be careful with pre-screening questions and ensure the questions pertain to business necessities under an objective standard and that, without the vaccine, there would be a direct threat to others.

 

Other Considerations

Beyond the legal implications that may result from requiring employees to take COVID-19 vaccinations, employers should also consider how such a procedure can affect potential religious practices and office-morale.

This is especially true in light of the fact that the number of complaints made by employees is also increasing. Majority of these complaints arise in the healthcare industry, followed by the retail industry and restaurant business.[14] As of January 25, 2021, the U.S. Department of Labor has tracked the increasing number of OSHA Complaints – with almost 13,000 federal complaints and over 42,000 state complaints.[15]

 

Below are some other helpful resources for businesses: 

The Texas Workforce Commission (TWC) put together some answers to commonly asked questions for employers: https://www.twc.texas.gov/news/covid-19-resources-employers.

The Equal Employment Opportunity Commission (EEOC) has guidance for employers about the Americans with Disabilities Act (ADA) and COVID-19. U.S. EEOC: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

Occupational Safety and Health Administration (OSHA) has published guidance on preparing for COVID-19 and information on COVID-19: https://www.osha.gov/Publications/OSHA3990.pdf; Department of Labor, Occupational Safety and Health Administration, COVID-19, https://www.osha.gov/SLTC/covid-19/.

The Center for Disease Control and Prevention (CDC) has information on COVID-19 for employers: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html.

The CDC also provided guidance for employers on the pandemic and critical infrastructure workers’ exposure: https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html.

If you have questions about how to ensure that your COVID-19 testing or vaccine policies comply with workplace and other applicable laws, don’t wait – contact us now to start your free consultation.

As an attorney who served as Chief Operating Officer for hospitals and medical practices throughout his career, Mr. Haque provides the legal, business and healthcare experience necessary to ensure successful results.

[1] https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days

[2] https://www.fda.gov/news-events/press-announcements/fda-takes-additional-action-fight-against-covid-19-issuing-emergency-use-authorization-second-covid

[3] ADA prohibits an employer from making a disability-related inquiry to an employee or requiring an employee to submit to a medical examination except in certain circumstances. 42 U.S.C. § 12112(a), (d). Note that HIPAA does not apply in the employer–employee context. See 45 C.F.R. § 160.103 (definition of “protected health information”). Nonetheless, “[a]ll information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential.” See EEOC Pandemic Guidance ¶ II.B.2 (citing 29 C.F.R. §§ 1630.14(b)(1)(i)–(iii), (c)(1)(i)–(iii); 29 C.F.R. pt. 1630 app. § 1630.14(b)).

[4] H.R.748 – CARES Act, 116th Cong. (2020), https://www.congress.gov/bill/116th-congress/house-bill/748/text. See Coronavirus Aid, Relief, and Economic Security Act, PL No. 116-136, §3203, 134 Stat 281 (2020).

[5] The FFCRA required employers to provide paid sick leave and expanded family and medical leave. Families First Coronavirus Response Act (FFCRA), Pub. L. No. 116-127, 134 Stat. 178 (2020).

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104.

[6] https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#104

[7] 42 U.S.C. § 12112(a), (d).

[8] 159 A.L.R. Fed. 89 (2000).

[9] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[10] Coronavirus Aid, Relief, and Economic Security Act, PL No. 116-136, §3203, 134 Stat 281 (2020) (“Section 3203:

  • IN GENERAL.—Notwithstanding 2713(b) of the Public Health Service Act (42 U.S.C. 300gg–13), the Secretary of Health and Human Services, the Secretary of Labor, and the Secretary of the Treasury shall require group health plans and health insurance issuers offering group or individual health insurance to cover (without cost-sharing) any qualifying coronavirus preventive service, pursuant to section 2713(a) of the Public Health Service Act (42 U.S.C. 300gg–13(a)) (including the regulations under sections 2590.715–2713 of title 29, Code of Federal Regulations, section 54.9815–2713 of title 26, Code of Federal Regulations, and section 147.130 of title 45, Code of Federal Regulations (or any successor regulations)). The requirement described in this subsection shall take effect with respect to a qualifying coronavirus preventive service on the specified date described in subsection (b)(2).
  • —For purposes of this section:
  • QUALIFYING CORONAVIRUS PREVENTIVE SERVICE.—The term “qualifying coronavirus preventive service” means an item, *368service, or immunization that is intended to prevent or mitigate coronavirus disease 2019 and that is—
    • an evidence-based item or service that has in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force; or
    • an immunization that has in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved.
  • SPECIFIED DATE.—The term “specified date” means the date that is 15 business days after the date on which a recommendation is made relating to the qualifying coronavirus preventive service as described in such paragraph.
  • ADDITIONAL TERMS.—In this section, the terms “group health plan”, “health insurance issuer”, “group health insurance coverage”, and “individual health insurance coverage” have the meanings given such terms in section 2791 of the Public Health Service Act (42 U.S.C. 300gg–91), section 733 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b), and section 9832 of the Internal Revenue Code, as applicable”).

[11] https://home.treasury.gov/policy-issues/cares/assistance-for-american-workers-and-families (the Act provided up to $1,200 per adult for individuals whose income was less than $99,000 (or $198,000 for joint filers) and $500 per child under 17 years old – or up to $3,400 for a family of four. The Coronavirus Response and Relief Supplemental Appropriations Act of 2021 authorized additional payments of up to $600 per adult and up to $600 for each qualifying child).

[12]

[13] https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained

[14] https://www.osha.gov/enforcement/covid-19-data#complaints_essential

[15] https://www.osha.gov/enforcement/covid-19-data#fed_inspections_open

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