By Kevin Toskey
With COVID-19 vaccines receiving emergency use approval (EUA) from the Federal Drug Administration (FDA), many cities are wondering if they can legally require employees to be vaccinated. This is relatively new legal ground, and guidance is evolving, but there are some legal considerations for cities to keep in mind.
EUA status from the FDA is not final approval and, technically, the vaccines are still in the experimental phase.
EUA status means that a vaccine “may be effective” and that known benefits outweigh known risks, while final approval means that there is “substantial evidence of safety and effectiveness.” Under the EUA, potential vaccine recipients must be informed that they can refuse the vaccine.
Whether an employer can mandate a vaccine with EUA status is a legal question that has not been tested. For those reasons, cities should be cautious about implementing mandatory policies prior to full FDA approval, which may occur in the forthcoming months.
If your city wants to implement a vaccination policy, you may need to bargain with the union of represented employees. Before taking any action, consult with your city attorney and/or labor and employment counsel to determine what part of the policy may need to be negotiated.
Minnesota courts have not addressed this topic, but the general rule is that injuries caused by an employer-mandated vaccine are compensable through workers’ compensation since the injury occurs within the scope of employment.
You cannot require employees to sign a waiver of workers’ compensation benefits if they refuse the vaccine for medical, religious, or any other reasons. Any such waiver of rights would likely not be enforceable under workers’ compensation laws.
Avoiding ADA violations
The Americans with Disabilities Act (ADA) prohibits workplace discrimination based on medical disability. Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on religion.
In the vaccination context, the ADA prohibits discrimination against those who cannot receive a vaccine for medical reasons. The employer must provide a reasonable accommodation for these employees unless doing so would constitute an undue burden. An undue burden means “significant difficulty or expense,” and is generally a high bar for employers.
When determining a reasonable accommodation, employers must engage in an interactive, individualized process with the employee. If a mandatory vaccination requirement screens out individuals who cannot receive the vaccine for medical reasons, the employer must show that an unvaccinated individual poses a “direct threat” that cannot be eliminated or reduced by reasonable accommodation.
A direct threat determination is an individualized determination and includes a conclusion that an unvaccinated individual will expose others to the virus at the worksite. If a direct threat cannot be reduced to an acceptable level, an employer may physically exclude the employee from the worksite.
The ADA also prohibits employers from making disability-related inquiries unless they are “job-related and consistent with business necessity.” Business necessity means a reasonable belief that an unvaccinated employee will pose a direct threat to their own health and that of others.
The Equal Employment Opportunity Commission determined that asking employees if they have been vaccinated is not a disability-related inquiry. However, asking employees pre-vaccination screening questions or why they have not been vaccinated are disability-related inquiries. If the city or its contracted vaccination provider asks these questions, the city must show that they are “job-related and consistent with business necessity” for the employee.
Title VII considerations
Title VII prohibits discrimination against those who object to the vaccine for sincerely held religious beliefs. Similar to the ADA, the employer must provide a reasonable accommodation for these employees after an interactive process, unless the accommodation would constitute an undue burden.
Under Title VII, an undue burden means something more than a minimal cost to the employer. This is a much lower standard than undue burden under the ADA.
Because the definition of religion is broad and protects beliefs, practices, and observances you may not be familiar with, you should ordinarily assume that an employee’s accommodation request is based on a sincerely held religious belief. If you have further questions about an employee’s religious belief, work with the city attorney to obtain additional information from the employee.
Incentives versus mandates
Rather than implementing mandates, try offering encouragement and incentives for employee vaccination. These may include educational campaigns, paid time off for getting the vaccination, or other non-monetary vaccination incentives.
If you have questions or would like to see samples of city vaccine policies, contact the League at firstname.lastname@example.org.
Kevin Toskey is a research attorney with the League of Minnesota Cities. Contact: email@example.com or (651) 281-1292.