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In brief

Pressure is mounting on US and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?


For help navigating the legal landscape of COVID-19 vaccines and drafting and implementing Return to Work policies that are compliant in each jurisdiction where your company has headcount, please contact your Baker McKenzie employment lawyer.

Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the US Treasury Department released a policy statement directing state and local governments to use funds from the USD 350 billion American Rescue Plan to incentivize vaccines by offering USD 100 to individuals who get vaccinated.

Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.

Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.

So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.

Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them. For illustrative purposes, we discuss California law in the framework below.

As a threshold matter, note that anti-discrimination laws apply to both employees and job applicants, but in different ways when it comes to medical exams and disability-related inquiries. However, because vaccination is not considered to be either a medical exam or a disability related inquiry, the legal analysis for a mandatory vaccination policy is similar for both employees and applicants.

At the federal level, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) do not prohibit employers from requiring employees to get vaccinated as a condition of employment, provided that the employer offers accommodations for employees or applicants who cannot get vaccinated due to a sincerely held religious belief or a disability. While the Equal Employment Opportunity Commission (EEOC) has not directly addressed vaccination requirements for job applicants, the agency has approved several similar requirements in the context of COVID-19. For example, EEOC guidance states that federal anti-discrimination laws do not prohibit employers from requiring vaccination or requiring employees to be vaccinated in order to work onsite, as long as the employer allows for accommodation. The guidance also states that employers can condition an offer of employment on an individual’s COVID-19 status, which means employers can withdraw an offer of employment to an individual who tests positive after the conditional offer is made.

The US Department of Justice also has weighed in, issuing a memorandum opinion on 26 July (dated 6 July) confirming that the Food, Drug, and Cosmetic Act does not prohibit “entities” from imposing vaccine mandates even though the only available vaccines for COVID-19 remain subject to Emergency Use Authorizations, and have not be fully licensed by the Food and Drug Administration.

Similarly, in California, the Fair Employment and Housing Act (FEHA) does not prohibit mandatory vaccination, and California Department of Fair Employment and Housing (DFEH) guidance goes a step further and supports vaccination requirements for both employees and applicants. According to the DFEH, an employer may require employees or job applicants to receive an FDA-approved vaccination against COVID-19, as long as the employer does not discriminate against employees or job applicants on the basis of a protected characteristic and provides reasonable accommodations to employees related to objections based on a disability or sincerely held religious beliefs.

Key Legal and Practical Considerations

Although neither federal nor California law prohibits mandatory vaccine policies, they do present some legal risks and considerations worthy of review:

  • State Law Requirements: If a company has locations in different US states, it will need to validate its vaccine policy for compliance with the laws of each state where employees work. Mandates may be illegal in certain states that prohibit discrimination on the basis of an individual’s vaccination status, such as Montana.
  • Accommodating Exceptions: Vaccine mandates must allow for disability and religious accommodations. This means companies must review and validate each accommodation request on a case-by-case basis, deciding whether the accommodation can and should be granted. Unless a company is willing to categorically grant all accommodation requests, the individualized review of exemption requests will require the dedication of considerable internal resources.
  • Disparate Impact: Vaccination requirements may pose a risk of disparate impact discrimination claims. Disparate impact discrimination exists when an employment practice disproportionately excludes a protected group of employees, and either: (i) the policy is not job-related or consistent with business necessity; or (ii) there is a less discriminatory alternative available. Disparate impact discrimination typically is proven through statistics and does not require the existence of a discriminatory motive.

Widely-reported demographic data on vaccination rates (available from the Center for Disease Control’s website here) shows black and Hispanic individuals have lower vaccination rates than other race/ethnicity categories. Both EEOC and California guidance on vaccine mandates state that employers may need to respond to allegations that their vaccine requirement has a disparate impact on — or disproportionately excludes from employment — employees that share certain protected characteristics (e.g., certain racial or ethnic groups).

If a policy is proven to cause a disparate impact, in order to avoid a finding that the policy is unlawfully discriminatory, a company must prove that the policy is job-related and consistent with business necessity. Even if the company meets this burden, an employee can still prove disparate impact discrimination if the employee shows there were other, less discriminatory alternatives that the company could have adopted.

Under current pandemic conditions, companies have a good argument that a vaccination requirement for onsite work is both job-related and consistent with business necessity, for several reasons:

  • The CDC recommends that all people who are age 12 or older get vaccinated as soon as they can, except for the limited group of people with medical contraindications.
  • COVID cases, hospitalizations, and workplace closures are increasing again with the proliferation of new variants, and unvaccinated employees pose a greater risk to workplaces than do vaccinated employees.
  • Vaccines have been proven to be far more effective than other measures against COVID-19, such as COVID testing, face coverings and other PPE, and social distancing.

Implementation Guidelines

In terms of implementing vaccination as a condition of employment in the US, we recommend the following steps:

  • Develop a Policy: As a first step, the employer should determine the rules for its vaccine policy. Will the policy be a strict mandate, or will the company adopt a “test or vaccinate” hybrid? The policy should be written, applied consistently, and allow both the employer and employee flexibility. Most importantly, the policy should clearly explain the exemption and accommodation process for disabilities and religious beliefs.
  • Distribute the Policy: The employer will need to communicate the policy to several groups, including existing employees, new hires, job applicants, and employee representatives. Unionized workforces may require bargaining before a policy is rolled out. Government contractors must consider whether the policy runs afoul of contract requirements or state law limitations on mandates.
  • Obtain Certification of Vaccine Status: Employers should determine if they will require self-certification (attestation) or proof (vaccine card, etc.). Employers should consider the potential application of state and federal privacy laws, such as the California Confidentiality of Medical Information Act or the federal Genetic Information Nondiscrimination Act, and inclusion of any necessary safe harbor notices. Certifications must not require employees to disclose the reasoning for their vaccination status, other medical information, or family medical history.
  • Enforce the Policy: Enforcing a mandatory vaccination policy can take on many forms, but may mean terminating the employment of unvaccinated employees without an approved accommodation, rescinding offers from newly hired employees, or declining to hire job applicants who fail to provide proof of vaccination.

Outside of the US, there are certain regional patterns to heed when building out a vaccination policy.

  • APAC: Generally, in the APAC region, it would be challenging for a company to build a case that it is necessary to be vaccinated in order for employees to perform their roles – although in certain jurisdictions like India, a carefully planned vaccination mandate could be permissible. For the most part, in APAC, governments are not mandating vaccines by law and instead, relying on other precautions to allow employees to safely work at the office (e.g., mask wearing, social distancing, etc.). Penalties in rolling out an unlawful vaccine mandate in APAC can range from monetary (e.g., damages for discrimination in Japan) to criminal (e.g., potential imprisonment of responsible directors / managers in Korea). In any case, in most APAC jurisdictions, the idea of mandating vaccines is currently viewed unfavorably.
  • EMEA: The EU has continued to view vaccine mandates general disfavor – though we are seeing signs that these sentiments may be changing in certain EMEA jurisdictions. For instance, the UK is considering adopting certain mandates for their citizens. Other jurisdictions such as France have warmed to the idea of requiring sanitary passes to attend leisure and cultural venues (but not employer – employee setting). That said, in the current environment, employers cannot build a case that it is necessary to be vaccinated in order for their employees to perform their roles, especially because governments are not mandating vaccinations by law and there are other precautions available to allow employees to safely work at the office (e.g., mask wearing, social distancing, etc.).

There are at least four serious risks to adopting a mandatory approach in EMEA:

  1. Perhaps most significantly, there is risk of criminal penalties (e.g., potential imprisonment of responsible directors / managers in jurisdictions such as France, Germany and Italy).
  2. The risk of discrimination claims in the event of any adverse action taken based on failure to vaccinate.
  3. The risk of negative PR from mandating vaccines since in most countries in the EU, individuals highly prize their right to bodily autonomy and would not view a vaccine mandate by employers favorably.
  4. If an employer terminates employees for refusing to be vaccinated, such employees would likely be entitled to reinstatement (and back pay, penalties and damages), if they challenge the termination.
  • Latin America: Generally speaking, it will be difficult for an employers in the Latin America region to build a case that it is necessary to be mandate vaccinations in order for employees to perform their roles, especially because governments are generally not mandating by law and there are other precautions available to allow employees to safely work at the office (e.g., mask wearing, social-distancing, etc.).
Author

Susan Eandi is the head of Baker McKenzie's Global Employment and Labor Law practice group for North America, and chair of the California Labor & Employment practice group. She speaks regularly for organizations including ACC, Bloomberg, and M&A Counsel. Susan has been published extensively in various external legal publications in addition to handbooks/magazines published by the Firm. Susan has been recognized as a leader in employment law by The Daily Journal, Legal 500, PLC and is a Chambers ranked attorney.

Author

Ben Ho advises clients on domestic and cross-border employment matters arising throughout the employment relationship. Mr. Ho also frequently counsels clients on employment law matters arising from domestic and cross-border mergers and acquisitions, and global corporate reorganizations.

Author

Robin Samuel is a partner in the Employment Practice Group of Baker McKenzie's Los Angeles office. Robin helps clients manage and resolve local and cross-border employment issues, whether through counseling or litigation. He advises clients on virtually all aspects of the employment relationship, including hiring and firing, wage and hour, discrimination, harassment, contract disputes, restrictive covenants, employee raiding, and trade secret matters. Clients trust Robin to handle their most sensitive and complex employment issues.

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