Due to the recent rise in COVID-19 cases and lower than expected vaccination rates, some public officials are urging employers to mandate the COVID-19 vaccine. As a result, several state and local governments have adopted vaccination requirements for certain employees. When deciding how to handle vaccinations in your workplace, start by assessing your rights and obligations under federal, state, and local law. Here’s an overview of what you need to know.

Federal Law on Mandatory Vaccination Policies:

In May, the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal nondiscrimination laws, published updated guidance (section K covers vaccinations) that makes clear that federal laws don't prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions discussed below.

Reasonable accommodations:

Federal law requires an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, don't get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the employer's business.

Additionally, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. If an employee seeks an exemption from a vaccine requirement due to pregnancy, you must treat them the same as you would other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Ensure that supervisors, managers, and human resources personnel know how to handle such requests.

State and local laws on mandatory vaccination policies:

Some states and local jurisdictions have adopted rules or issued guidance on mandatory vaccination for COVID-19. Here are a few examples:

Montana:

In May, Montana enacted legislation that prohibits employers from refusing employment to an individual or discriminating against an employee based on their vaccination status or whether they have an immunity passport.

California:

In March, the California Department of Fair Employment and Housing (DFEH) published new guidance addressing vaccination policies and practices. The DFEH says that an employer may require employees to receive an FDA-approved COVID-19 vaccine as long as the employer:

• Does not discriminate against, or harass, employees or job applicants on the basis of a protected characteristic;
• Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
• Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

New Jersey:

The New Jersey Department of Labor (NJDOL) has released guidance that says employers may require that their employees receive COVID-19 vaccinations to return to the workplace, except under the following circumstances:

• The employee has a disability or a sincerely held religious belief, practice, or observance that precludes them being vaccinated; or
• The employee's physician has advised otherwise due to pregnancy or need to breastfeed.

An employer must provide a reasonable accommodation from a mandatory vaccine policy for any of the reasons listed above unless doing so would impose an undue burden on their operations. Reasonable accommodation may include:

• Allowing an employee to continue to work remotely or otherwise work in a manner that would reduce or eliminate the risk of harm to other employees or the public; or
• Providing an employee with personal protective equipment that sufficiently mitigates the employee's risk of COVID-19 transmission and exposure.

Other States and Local Jurisdictions:

Other states and some local jurisdictions may prohibit or limit employers from mandating employee vaccinations or have privacy laws that may impact employers.

Other Considerations:

Even where an employer can mandate COVID-19 vaccination, there are numerous issues to consider before doing so, such as:

• The current vaccination rate among employees without such a mandate;
• The risk to others if more employees don't get vaccinated given the level of potential exposure at work, the current data and trajectory of cases in the community, the current vaccination rate in the community, and other pertinent factors;
• The effectiveness of masks, social distancing, and other safety measures that are currently in effect to prevent the spread of COVID-19;
• The risk of litigation or workers' compensation claims if employers do/don't require vaccination (such as, an employee experiencing side effects from the vaccination);
• Requirements for providing accommodations for disabilities and sincerely held religious beliefs and practices;
• Protections for employees under the National Labor Relations Act (NLRA) if they work together to oppose a vaccine mandate;
• The potential impact on employee morale given the work environment and culture; and
• The U.S. Centers for Disease Control and Prevention (CDC)’s recently updated guidance on wearing masks when fully vaccinated. The updated guidance recommends that fully vaccinated people wear a mask in public indoor settings in areas of substantial or high transmission.

Federal, State, and Local Mandates:

The federal government and some states and local jurisdictions are requiring certain employees to receive the COVID-19 vaccine, such as:

• Federal. Last week, President Biden announced that every federal employee and onsite contractor will be asked to attest to their vaccination status. Those who don’t attest to being fully vaccinated will be required to wear a mask on the job, physically distance from all other employees and visitors, comply with a weekly or twice weekly testing requirement, and be subject to restrictions on official travel. Meanwhile, the U.S. Department of Veterans Affairs (VA) is requiring all healthcare personnel to be vaccinated if they work in Veterans Health Administration (VHA) facilities, visit VHA facilities, or provide direct care to those the VA serves.
• California. In late July, the governor announced that all state workers and workers in public and private healthcare settings will be required to either show proof of full vaccination or be tested at least once per week. In addition to weekly testing, unvaccinated workers will be required to wear appropriate personal protective equipment. These rules also apply to high-risk congregate settings, such as adult and senior residential facilities, homeless shelters, and jails.
• New York State. In late July, the governor announced that all state employees will be required to show proof of COVID-19 vaccination or be subject to weekly testing. At state-run hospitals, all patient-facing healthcare workers will be required to be vaccinated (there is no option of getting tested weekly instead).
• New York City and Los Angeles. In late July, the mayors of New York and Los Angeles announced that all city employees will be required to provide proof of vaccination or submit a weekly COVID-19 test.

More state and local jurisdictions are likely to consider similar requirements. Watch closely for developments.

Conclusion:

Ensure that your policies and practices comply with the latest federal, state, and local guidance and rules on COVID-19 vaccination.