Throughout the pandemic, uncertainty has become the norm, and mandatory vaccination policies are no exception. This update gives an overview of the current tensions surrounding mandatory vaccination, and what employers can expect over the next few months. A correctly structured mandatory vaccine policy is legally permissible but, at present, there are practical problems and other issues that make it advisable to wait before deciding whether to adopt a mandatory vaccination policy.
A mandatory vaccination policy has the potential to violate anti-discrimination and/or privacy laws because the policy
- may exclude employees from the workplace who have a disability, or a sincerely held religious belief, that prevents vaccination; or
- may involve the employer in collecting confidential health information about employees.
Despite these challenges, the Equal Employment Opportunity Commission (EEOC) has cleared a path for employers to develop legally compliant mandatory vaccine policies. During the 2009 H1N1 flu pandemic (swine flu), the EEOC indirectly authorized mandatory flu vaccination programs by noting that such policies must include abstention for medical or religious grounds. In December 2020, the EEOC updated its COVID-19 guidance, indicating that vaccine mandates are permissible as long as the policy provides an opportunity for considering reasonable accommodations for employees who object on medical or religious grounds.
With respect to restrictions on employers requesting or collecting health information about employees, the easiest way to address this potential legal thicket is for an employer to require evidence of vaccination from employees, and not itself manage, or even outsource to a vendor, a vaccination program.
Lack of Vaccine
Although a properly structured mandatory vaccination policy would be legally supportable, such a policy is not yet feasible. An initial “gating” item for any such program is the availability of “vaccination on demand.” It does not appear that Massachusetts will reach this threshold until May at the earliest, so it is not yet practical to adopt a mandatory vaccination policy. This delay, however, will provide employers with time to consider whether they will mandate vaccines, once they become more readily available.
Lack of Consensus
Employers also need to consider the effect of a mandatory vaccination policy on their employees. There is currently a lack of public consensus over mandatory vaccine policies, which could make it harder to obtain employee buy-in.
To begin with, the CDC has stated that “[t]he federal government does not mandate vaccination for individuals,” even for workers in vulnerable healthcare occupations. While not a legal prerequisite, the CDC’s neutrality underscores a lack of cultural or political consensus on the issue.
The effect of the CDC’s neutrality is readily apparent in the vaccination policies adopted by Massachusetts long-term care employers. This industry is no stranger to mandatory medical requirements, with annual employee flu vaccination set as a condition of licensure by the Department of Public Health (DPH). Notably, the DPH has not mandated COVID-19 vaccines for long-term care employees.
Furthermore, all approved COVID-19 vaccines are still under Emergency Use Authorization (EUA) by the Food and Drug Administration, the terms of which require notice that the recipient has the option to refuse the vaccine. Following this to its logical conclusion, even if an employer required vaccination, the EAU specifically alerts employees that they may decline it.
Against this back-drop, private non-health care employers are nearly certain to face significant conflicts with employees over mandatory vaccination policies, and very difficult choices when some employees inevitably refuse.
The Current Outlook
Not surprisingly then, most surveys indicate that very few employers are opting for mandatory vaccination policies. Hence, employers hoping for “safety in numbers” will have to wait to see how the situation develops over the next few months. The critical factor in gaining momentum for mandatory vaccination policies is likely to be whether there is affirmative support for this approach from the CDC. With continued positive clinical data around vaccine safety and efficacy, combined with continued news of COVID spread and new variants, a shift by the CDC — and increasing public support — may be closer than we think.
For the present, the prudent course is for employers to defer implementing or announcing a mandatory vaccine program.