[co-author: Joe Murphy]

Without a decisive legal pronouncement by the federal government permitting employers to institute a vaccine mandate, employers should continue exercising caution to avoid potential legal pitfalls when devising a vaccine policy and potential mandate by allowing for legal exceptions and anticipating possible resistance based on language in FDA Emergency Use Authorizations (EUAs) for vaccine manufacturers. Despite more recent news from media outlets stating employers can lawfully mandate vaccines, the latest guidance in prior blogs by this firm remain intact.

Complications for employers in drafting vaccination policies stems from the patchwork of federal, state, and local legal frameworks—and a steady flow of COVID-19 informal government agency guidance. For instance, issues of workplace health and safety related to vaccination policies may implicate protections under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act, and various other federal, state, and local laws including workers’ compensation laws.

On May 28, 2021 the Equal Employment Opportunity Commission (EEOC) clarified and supplemented guidance for employers that choose to require vaccinations for COVID-19, summarized below:

• Federal EEO laws do not prevent employers from requiring employees physically entering the workplace to be vaccinated for COVID-19, subject to the ADA’s and Title VII’s reasonable accommodation provisions.
• Reasonable accommodations must be provided for employees who do not get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
• COVID-19 vaccination documentation is confidential medical information under the ADA and must be stored separately from personnel files, despite employers being able to require documentation confirming vaccination.

The EEOC guidance for employers with voluntary vaccination policies also provides:

• Employers also must keep any medical information obtained from any voluntary vaccination program confidential.
• The ADA prohibits taking an adverse action against an employee for refusing to participate in a voluntary employer-administered vaccination program.
• Employer may offer an incentive to employees (without violating Title VII and the ADA) to voluntarily provide documentation or other confirmation of a vaccination because requesting confirmation that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.

The latest CDC guidance makes clear that vaccines cannot be mandated by employers absent state or local law

• COVID-19 vaccines are not mandated under the FDA’s Emergency Use Authorizations.
• A possible mandate of COVID-19 vaccination is a matter of state or other applicable law.
• Reference is made to the EEOC guidance on mandatory vaccination.

On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a temporary safety rule for the healthcare sector that provides for additional compliance obligations for healthcare employers including the ability to mandate vaccination unless required to accommodate an employee under various, applicable anti-discrimination laws.

The following steps are recommended for employers:

• Train managers and supervisors on how to recognize reasonable accommodation requests for any employer requiring COVID-19 vaccination.
• Ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice or observance.
• Reasonable accommodations might include wearing a face mask, social distancing, working a modified shift, getting periodically tested for COVID-19, telework, or finally, reassignment.
• A supervisor who receives confidential information while working remotely still must safeguard this information to the greatest extent possible until the supervisor can properly store it.

Despite the latest guidance, no federal agency has specifically authorized employer-implemented mandatory vaccination programs for EUA vaccines that have not undergone the full biological approval process. Thus, any workplace vaccination policy related to the EUA vaccines should be carefully prepared and administered.