Abstract
Erica L. Opitz and Diana Perez Gomez are attorneys with Chamberlain Hrdlicka, a law firm headquartered in Houston, providing expertise on a variety of matters relating to corporate governance; commercial contract, mergers and acquisitions: and privately held securities, among others. In this article, they discuss the key factors that the board should weigh when deciding whether to require their employees to receive the COVID‐19 vaccine.
Following nationwide protests demanding racial equality and the end of systemic injustice, legislators, investors, and industry leaders have endeavored to hold corporations accountable for their role in perpetuating social inequities. In the past year, new regulatory requirements for diversity—including race, ethnicity, gender, and sexual orientation—among boards of directors have been enacted, shareholders have brought derivative litigation to demand improved equity and inclusion, and market influencers, including NASDAQ itself, have proposed new measures of corporate accountability. Accordingly, even the most well‐intentioned companies face a new landscape of potential liability if they cannot show compliance with tangible measures of diversity and inclusion. Nevertheless, by understanding new sources of potential liability and taking demonstrable steps to meet and exceed these benchmarks, companies and their boards can ameliorate legal risks, improve their own decision‐making by adding new viewpoints, and assume their role as part of our societal advancement toward equality.
After over a year of uncertainty, many companies are optimistic that vaccines made available to the American public through the Food & Drug Administration (FDA) will help them resume normal operations in 2021. Although many companies have found that their workforce is just as productive when working remotely, other companies cannot operate under remote conditions. For those companies there is a sense of urgency to get back to normal and the available vaccines, given emergency use authorizations (EUA), provide a potential light at the end of the tunnel.
However, vaccines will only protect a company's workforce if employees actually vaccinate. As a result, many employers are trying to determine whether they can, or should, enforce a mandatory vaccination program for their employees. A mandatory vaccination policy would require employees to receive COVID‐19 vaccination as a condition to return to the workplace. In making this decision, the board of directors of these companies should carefully consider a number of factors.
Legality of a Mandatory Vaccination Policy
Although the Equal Employment Opportunity Commission (EEOC) has issued guidance for when employers require vaccinations, it does not explicitly state that a mandatory vaccination policy is permissible. Additionally, it is important to recognize that EEOC guidance does not carry the substantive authority of law. Courts are not required to defer to EEOC guidance when making decisions.
Currently, there is proposed legislation in some states that would prohibit employers from refusing to hire, discharging, or discriminating against an individual based on vaccine status. For example, Texas House Bill 1687 would amend the Texas Labor Code to make it unlawful for an employer to fail or refuse to hire, discharge, or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because the individual has not received a COVID‐19 vaccine. Pennsylvania House Bill 262 likewise makes it unlawful for an employer to discharge, refuse to hire, or retaliate or discriminate against an individual for refusing vaccinations and goes further by protecting an employee who informs other employees about the law.
At this time, the vaccines have only been given EUAs by the FDA. Under the FDA statute, individuals receiving the vaccine must be informed “of the option to accept or refuse administration of the product.” See 21 USC 360bbb‐3(e)(1)(A)(ii)(III). The EEOC guidelines also reference the EUAs and note the FDA's obligation to “ensure that recipients of the vaccine under an EUA are informed…they have the option to accept or refuse the vaccine.”
The board of directors will want to take into account the changing landscape in this area of law, as well as the fact that a mandatory vaccination policy could ultimately be held unenforceable by a court.
Administration of the Vaccine
Some mandatory vaccination programs require proof of vaccination, whereas others provide on‐site vaccinations to their employees. Either way, there are a number of legal as well as logistical considerations that the board of directors will want to consider.
Although the EEOC does not consider vaccination a medical examination under the Americans with Disabilities Act (ADA), if a company is providing on‐site vaccinations, pre‐vaccination screening questions and follow‐up questions may require employees to disclose personal medical information. If the Board decides to request proof of vaccination from the company's employees, the EEOC has held that such a request is “not likely to elicit information about a disability.” However, additional questions, such as asking why an employee is not vaccinated, may result in the disclosure of an employee's disability. As a result, companies should only request health information from their employees that is job‐related and consistent with business necessity. Much of this potential legal liability may be avoided if employees receive their vaccination from an off‐site vaccination center.
It is also important to maintain the confidentiality of any personal medical information received from employees in compliance with the ADA. All medical information about an employee, including an employee's statement that he or she believes they have COVID‐19, should be stored separately from the employee's personnel file. Additionally, if a Board is considering an on‐site mandatory vaccination program or requesting proof of vaccination, they should develop policies and procedures that limit the information requested from employees, as well as who has access to such information after it is provided to the company.
Reasonable Accommodations
There are a number of reasons that an employee may refuse to receive the vaccine. Some of these reasons include the unknown effects of the vaccine on pregnancy, disabilities that prevent the employee from receiving the vaccine, or religious objections to receiving the vaccine. An employer must provide a reasonable accommodation for a disability or religious belief, practice, or observance unless it would pose an undue hardship. Consequently, before making an employment decision, the employer should conduct an individual assessment to determine if an unvaccinated employee poses a direct threat and whether a reasonable accommodation can eliminate or reduce that direct threat. If there is no reasonable accommodation available, the employer may be able to exclude the employee from physically entering the workplace. However, any employment action, including excluding the employee from the worksite or separating the employee, must comply with any applicable federal, state, and local equal employment laws. Additionally, managers and supervisors should be reminded that it is unlawful to retaliate against an employee for requesting an accommodation.
Encouragement and Incentives
Some companies may decide to encourage receipt of the vaccine as opposed to requiring it. There are companies that have considered offering incentives for employees who can provide proof of vaccination. Currently, it is unclear whether the law will permit the offering of these incentives. Earlier this year, the EEOC issued guidance that indicated that employers could only offer de minimis incentives. However, the EEOC later withdrew this guidance. We expect to see new EEOC guidance in the near future.
COVID‐19 Precautions Must Still Be Taken
At this point, there are still a lot of unknowns related to COVID‐19 vaccines: For instance, whether and to what extent an individual who received the vaccine may continue to spread the virus similar to the spread of the virus that is common in someone who is asymptomatic but contracted COVID‐19. Without this data, the board of directors should assume that the vaccination is for the protection and benefit of the individual who received the vaccination and not the protection of other employees or third parties. Ultimately, this means that the board of directors should continue to maintain and enforce all precautions that the company has been implementing, including the precautions recommended and required by the Center for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA), and state and local agencies.
Lead by Example
If the board of directors decides to implement a mandatory vaccination policy or encourage their employees to receive the vaccine, they should not underestimate the power of leading by example in a way that is visible to their employees, such as documenting their receipt of the vaccine and sharing a picture or video with employees. This could help to convince some employees who are undecided on whether to receive the vaccine.
In Conclusion
Given the constantly evolving landscape in this area, most companies have chosen to encourage but not mandate the vaccination of their employees. Additionally, some companies are providing their employees with updated information regarding the safety and efficacy of the vaccines, as well as information on where employees can sign up for vaccinations. According to the CDC, the vaccines are effective and “[m]illions of people in the United States have received COVID‐19 vaccines,” which have “undergone the most intensive safety monitoring in U.S. History.” As we all proceed through these uncharted waters, it is always best to consult with legal counsel before implementing any policies or procedures.
About the Authors
Erica Opitz is a shareholder in the firm's Atlanta office in the Corporate, Securities and Finance Practice Group. She can be reached at erica.opitz@chamberlainlaw.com.
Diana Pérez Gomez is a shareholder and vice‐chair of the firm's Houston Labor & Employment Group. She can be reached at diana.gomez@chamberlainlaw.com.