How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated.  Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.

Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers.  However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws.  Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.

[6/1/21 UPDATE – Check out our newer article about updated EEOC vaccination guidance that touches on many of these same issues.]

Question 1: Can employers ask employees about their COVID-19 vaccination status?

Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination.  If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status.  Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether: Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard and Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons.  The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.”  See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.

Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency.  The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.

While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA Continue reading

What Employers Need to Know About Mandatory COVID-19 Vaccines

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. 

This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.

Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.

As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.

In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading