United States: Q&A - Employer COVID-19 Vaccination Policies (Updated)
*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
Only in limited respects, on a patchwork basis. Certain U.S. states and cities require employers to ensure that either all of their onsite employees are vaccinated or, if not, that they all wear face coverings and practice social distancing. Some cities and other locations have also made vaccination mandatory for certain types of workers (e.g., healthcare workers), and there are a few cities that have made vaccination mandatory (subject to the two exemptions discussed below) for all city employees and/or for entry into certain types of businesses, including by employees. Additionally, in September 2021, President Biden issued executive orders requiring (a) hospitals and certain other healthcare facilities, and (b) federal government employees and federal contractors (those who do business with the government) to ensure that their employees are vaccinated (subject to the same two exemptions). The order applicable to hospitals and healthcare facilities has been upheld by the U.S. Supreme Court as valid, but the government employee and contractor requirement remains subject to challenge and thus its applicability is still to be determined.
Can an employer require employees to get the COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
In most states and cities, employers can require their employees to be vaccinated, subject to providing an exemption to employees who either (1) have a disability that makes it medically inadvisable for them to be vaccinated or (2) hold sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. There are a handful of states, however, that have made such a requirement unlawful.
Can employers require the wearing of masks in the workplace?
Subject to an employee challenge for medical or religious reasons as described above and for certain employers where the employees are represented by a labor union, yes.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
As set forth above, applicable law recognizes two main situations in which an employer’s right to require vaccination is limited – where the employee has a disability that would make it unsafe for him or her to be vaccinated or objects to the vaccine due to a sincerely held religious belief. If these two situations do not apply, then (other than in a handful of states that have enacted greater protections) an employer can proceed with terminating an employee who refuses to be vaccinated.
Where the employee has a disability that prevents him or her from being vaccinated, to proceed with termination or non-hire, the employer must show that the unvaccinated employee poses a “direct threat” due to a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by a “reasonable accommodation.” This requires an individualized, fact-based analysis based on (a) the duration of the potential harm, (b) the nature and severity of the potential harm, (c) the likelihood that the potential harm will occur, and (d) the imminence of the potential harm. An employer can likely meet this standard in an environment where the risk is significant and the job duties require frequent and close interaction with others (e.g., a hospital nurse). An employer will have a harder time doing so, however, in an office environment where a reasonable accommodation might be to allow the disabled employee to work from home or in an office or other work environment in which his or her exposure to others is eliminated or at least greatly diminished.
In the case of a sincerely held religious belief, an employer must provide a similar “reasonable accommodation” unless doing so would be an “undue hardship” for the employer. An undue hardship, in turn, is something “more than a de minimis cost or burden on the employer.”
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
The United States does not have a “just cause” termination standard, except where established by a written agreement, which is rare. Thus, an employer could terminate the employment of an employee for refusing to be vaccinated, subject to the risk of an employee's claim for disability or religious discrimination, as discussed above. Additionally, as set forth above, there are a handful of states that have enacted laws limiting an employer’s right to insist upon vaccination and/or to terminate an individual because of his vaccination status.
What benefits or accommodations do employers have to make for vaccinated employees?
Other than in a few places where employers have to provide employees a limited amount of paid time off to get vaccinated (typically four hours or less), employers are not required to provide benefits or accommodations for vaccinated employees, other than those applicable to employees broadly (e.g., disability-related accommodations).
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
Vaccinated employees can make such a request, but the employer does not have to honor it except where there is a disability-related reason for the request (i.e., the vaccinated employee has a bona fide medical issue and not just a generalized fear of infection).
In your country, are employers required to provide paid leave for employees to get vaccinated?
Certain states and cities have mandated that employers provide employees paid leave (often up to four hours per shot) to get vaccinated and some also require paid leave if the employee experiences side effects from the shot.
Contributor
Faegre Drinker
David Woolf
david.woolf@faegredrinker.com