Vaccination of City Employees for COVID-19

Published: December 21, 2020

Disclaimer: Like many COVID-19 issues, the topic of vaccination is new, and the area of law is frequently updated. Recommendations may change as additional information is received.

Find more information on COVID-19 vaccinations at:

Get answers to these FAQs about vaccination of city employees for COVID-19:

Q1. Can city require employees to receive the COVID-19 vaccination when it becomes available?

Q2. If a city requires vaccination following full FDA approval, does it have to pay for the COVID-19 vaccination and employee time to receive it?

Q3. If the city mandates vaccines and an employee has an adverse reaction to the COVID-19 vaccine, is there liability for the city?

Q4. If an employer requires COVID-19 vaccinations following full FDA approval, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination for medical reasons?

Q5. If an employer requires COVID-19 vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

Q6. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory COVID-19 vaccine policy because of a disability or sincerely held religious practice or belief?

Q7. If an employee is fully vaccinated for COVID-19, do they still need to wear a mask (assuming the city and/or an executive order require a mask)?

Q8. Is an employer allowed to ask if an employee has been vaccinated for COVID-19 and retain that information?

Q9. If an employee is fully vaccinated for COVID-19 and comes into close contact with a COVID-positive person, do they still need to quarantine?

Q10. If an employee decides not to vaccinate for COVID-19, are there proposed steps that they need to follow with PPE/masks?

Q11. Some of the city’s employees are unionized. Is a mandatory COVID-19 vaccination policy something we have to bargain for?

Q12. If the city does not mandate COVID-19 vaccines and an employee with COVID-19 infects a member of the public, is there liability to the city?

Q13. Can the city require some groups of employees to be vaccinated for COVID-19 and not others?

Q14. If an employee is eligible to receive the COVID-19 vaccine, either before or after full FDA approval, and refuses, can the city require the employee to sign a waiver of workers’ compensation benefits?

Q15. Does the League have sample vaccination policies?

Q1. Can city require employees to receive the COVID-19 vaccination when it becomes available?

A1. No. At this time, employers, including city employers, cannot mandate the COVID-19 vaccine because of its current emergency US Food and Drug Administration (FDA) approval status. However, if the FDA issues its full approval, a city employer will generally be able to require the vaccine. There are exceptions to this including for religious or medical reasons. Employers are likely also responsible for costs associated with vaccinations, workers’ compensation benefits if an employee has a vaccine-related injury, and there may be a necessity to bargain for the mandate within some collective bargaining agreements. (More on each of these areas is included in the following FAQs.) Read more about the FDA’s Emergency Use Authorization.

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Q2. If a city requires vaccination following full FDA approval, does it have to pay for the COVID-19 vaccination and employee time to receive it?

A2. Yes. The Fair Labor Standards Act requires employees be compensated during the time spent for city mandated vaccinations.

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Q3. If the city mandates vaccines and an employee has an adverse reaction to the COVID-19 vaccine, is there liability for the city?

A3. Yes. If a city requires its employees to get vaccinated for COVID-19, that city will likely have workers’ compensation liability for any adverse reactions. A city’s requirement that its employees get vaccinated would be a term and condition of employment. It follows that any adverse reaction to a required vaccination arises out of the employment and, therefore, would fall under the workers’ compensation framework.

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Q4. If an employer requires COVID-19 vaccinations following full FDA approval, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination for medical reasons?

A4. The U.S. Equal Employment Opportunity Commission’s (EEOC’s) latest guidance (released on Dec. 16, 2020) says, the Americans with Disabilities Act (ADA) allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” (Federal regulation 29 C.F.R. 1630.2(r).)

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur;
  4. And the imminence of the potential harm.

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the Equal Employment Opportunity (EEO) laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the Family and Medical Leave Act (FMLA), or under the employer’s policies. Read more on EEO rights relating to pregnancy (Section J).

Managers and supervisors responsible for communicating with employees about compliance with the employer’s COVID-19 vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, including JAN materials specific to COVID-19. To facilitate the interactive process, contact the League for sample forms.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in the EEOC guidance regarding reasonable accommodation (Question K.7.), there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration (OSHA) COVID-19 standards and guidance.

Managers and supervisors are reminded it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

Read more about accommodations: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

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Q5. If an employer requires COVID-19 vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

A5. The EEOC’s latest guidance (released Dec. 16, 2020) says once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” for religious accommodations under Title VII as having more than a de minimis cost or burden on the employer. Because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If the city employer has doubts or concerns, it should work with its city attorney to obtain additional information.

Read more about accommodations: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. To facilitate the interactive process, contact the League for sample forms.

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Q6. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory COVID-19 vaccine policy because of a disability or sincerely held religious practice or belief?

A6. The EEOC’s latest guidance on accommodation (K.5., released on 12/16/20) says if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Read more about accommodations: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. To facilitate the interactive process, contact the League for sample forms.

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Q7. If an employee is fully vaccinated for COVID-19, do they still need to wear a mask (assuming the city and/or an executive order require a mask)?

A7. Yes, recommendations for personal protective equipment and mask wearing requirements are not different for a vaccinated individual at this time. As public health experts learn more about the virus and the vaccine, this may change.

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Q8. Is an employer allowed to ask if an employee has been vaccinated for COVID-19 and retain that information?

A8. Generally, employers can ask about vaccinations of employees when the inquiry is job-related and there is a business reason for doing so, such as protecting the safety of other workers. Employers requiring vaccinations must maintain records of vaccinations in the employee’s non-public data file and in accordance with ADA and Minnesota Data Practice laws. OSHA requires vaccinations and records for certain positions.

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Q9. If an employee is fully vaccinated for COVID-19 and comes into close contact with a COVID-positive person, do they still need to quarantine?

A9. Yes. The Minnesota Dept. of Health says there is currently no data on the ability of a fully vaccinated individual who is exposed to COVID-19 to spread the disease to someone else. In other words, the vaccine will protect the person who has been vaccinated, at least for some period of time, but it may not protect others around that individual if the individual is exposed after being vaccinated. Until that information is available, current recommendations about exposure, quarantine and isolation should be followed.

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Q10. If an employee decides not to vaccinate for COVID-19, are there proposed steps that they need to follow with PPE/masks?

A10. Following current guidelines from the CDC and MDH are encouraged and continue to take into account the majority of our population is not yet vaccinated. Read more about COVID-19 on the CDC website.

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Q11. Some of the city’s employees are unionized. Is a mandatory COVID-19 vaccination policy something we have to bargain for?

A11. Maybe. A required vaccination is a condition of employment. If the collective bargaining agreement does not already require mandatory vaccinations as determined by the city, the city should consult with its city attorney or labor counsel to see what, if any, part of the policy or implementation thereof will need to be bargained with the union.

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Q12. If the city does not mandate COVID-19 vaccines and an employee with COVID-19 infects a member of the public, is there liability to the city?

A12. There is no legal precedent on this issue. Having a strong preparedness plan where the city is doing everything it can to ensure employees are following health and safety guidance is encouraged and will help establish any legal immunity defenses. Currently, COVID-19 is considered to be widespread in our communities so proving causation may also be difficult.

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Q13. Can the city require some groups of employees to be vaccinated for COVID-19 and not others?

A13. In general, yes, the city can distinguish between groups of employees when the differences are job related and there is a good business reason for doing so. For example, the city may wish to require employees who have duties associated with closer contact with the public to be vaccinated (e.g., police, firefighters, reception desk staff) while not requiring employees who have little interaction with the public (e.g., internal finance staff). However, the city should carefully think through such a policy and be prepared to justify the differentiation.

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Q14. If an employee is eligible to receive the COVID-19 vaccine, either before or after full FDA approval, and refuses, can the city require the employee to sign a waiver of workers’ compensation benefits?

A14. No. The Minnesota Workers’ Compensation Act provides that injuries arising out of and in the course of employment shall be covered by workers’ compensation. Any such waiver of rights would likely not be enforceable under the workers’ compensation laws.

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Q15. Does the League have sample vaccination policies?

A15. Yes, contact the League’s Research & Information Service at research@lmc.org to request sample vaccination policies we have collected.

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