By A. Scott Hecker

Seyfarth Synopsis: The EEOC recently issued guidance to employers considering mandating that their employees receive the COVID-19 vaccine. Employers are also left with other considerations, including how to address temporary workers at their worksites, whether FDA emergency use authorizations change the vaccine calculus, and how state laws may impact decision-making. We address some of the additional nuances to this fluid situation.

Seyfarth offered a comprehensive review of the EEOC’s December 16, 2020 guidance on whether employers can mandate that their employees receive the COVID-19 vaccine.  With this guidance in hand, and the prospect of widespread distribution of vaccines in 2021 on the horizon, employers are exploring their options for developing vaccination programs. Seyfarth has received a number of frequently asked questions from clients, both pre- and post-EEOC guidance, and the firm continues to monitor these developing issues.

The EEOC guidance made clear that employers can mandate employee vaccination, under certain conditions, and historically, federal OSHA has also indicated that employers can mandate vaccines. But employers will confront other issues with employer-mandated vaccination as the vaccine becomes more widely available, such as how to address contractors or other temporary workers at employer worksites.

Typically, employers have greater flexibility regarding vaccine requirements for contractors/temporary workers (or even visitors) – similar to testing and screening – because employers do not have a duty to accommodate these individuals (i.e., the ADA only applies to employees); however, some states have different legal requirements. For example, New York, allows “employees or applicants with disabilities . . . [to] request a reasonable accommodation, regardless of . . . employment status (permanent, contingent, temporary or provisional).”

Under section 296-d of New York’s Human Rights Law:

It shall be an unlawful discriminatory practice for an employer to permit unlawful discrimination against non-employees in its workplace. An employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace, with respect to an unlawful discriminatory practice, when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to an unlawful discriminatory practice in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action. In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the person who engaged in the unlawful discriminatory practice shall be considered.

“Unlawful discriminatory practice” includes “refus[al] to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment” based on, e.g., creed or disability.

For uniformity’s sake, employers may want to align their employee and contractor vaccination requirements. Employers should also remain cognizant of potential joint employment issues when addressing non-employee concerns, including whether to ask for and how to maintain confirmation of vaccination from these individuals.

Something else for employers to consider is that COVID-19 vaccines are currently only available under FDA emergency use authorizations (“EUA”). When permitting emergency use of a vaccine, the FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

This information is typically conveyed in a patient fact sheet that is provided at the time of vaccination. While the EEOC may not identify significant additional hurdles in considering vaccine mandates under an EUA, versus full FDA approval, we expect more robust development of the law in this space as employees (and perhaps others on worksites) test this approach in court.

In any event, arrival of the vaccine does not end the pandemic. Employers should maintain COVID-19 mitigation protocols during distribution of the vaccine. These policies may continue for a lengthy period as the vaccine is rolled out to different groups of workers and as employers work through accommodation requests. Employers who have operated with, e.g., social distancing, masks, etc., should be able to continue (and may be able to use these procedures as ongoing accommodations for those employees who do not receive a vaccine).

As with all things COVID-19, the states will have their say as well. Each state has developed a vaccine plan, and we generally expect states to follow federal guidance regarding the administration of COVID-19 vaccines. Our fingers are crossed that, in the interests of public health and broad vaccine deployment, California will adopt an interpretation of its Fair Employment and Housing Act consistent with the EEOC’s determination that the administration of the COVID-19 vaccination is not a medical examination and that employers’ requesting proof of vaccination is not a disability-related inquiry.

California’s COVID-19 vaccine page indicates that “there is no mandatory vaccination requirement from either the state or federal government. While vaccine doses will be limited in supply at first, we hope that by educating Californians about the safety and efficacy of a COVID-19 vaccine, we can encourage voluntary adoption of the vaccine.”

New York’s COVID-19 vaccine FAQs read “New York State is not mandating the COVID-19 vaccine.”

With dynamic circumstances and in the early stages of vaccine distribution, it is difficult to predict exactly how jurisdictions will proceed. States may continue to consider mandating vaccines (or prohibiting required vaccination). A number of state legislatures have pre-filed bills prohibiting or limiting vaccine mandates (e.g., Florida, Kentucky, Missouri, South Carolina, Tennessee, and Washington). New York and New Jersey are considering such proposals in current legislative sessions, while New York has also seen a contrasting proposal that would make the COVID-19 vaccination mandatory throughout the state. For a deeper dive into these state-level issues, take a look here,

For now, we have not seen any state-wide vaccination mandates, but indications are that employers can mandate vaccines, subject to relevant legal requirements.

Please reach out to your friendly, neighborhood Seyfarth attorney with additional questions.