As the long-awaited COVID-19 vaccinations become increasingly available to the general public, many employees and unions may be questioning whether it is legal for employers to force their employees to receive vaccinations as a condition of employment. Interestingly enough, Katz, Friedman’s Senior Labor Partner, Stanley Eisenstein, was recently asked that very question in an appearance on Channel 7, ABC Chicago’s local news affiliate.
The short answer to the question is, “Yes.” Generally speaking, employers in the United States can require employees to receive vaccinations as a condition of continued employment. However, there may be some exceptions. For instance, if you are part of a union covered by a collective bargaining agreement, then your employer may have a duty to bargain with the union over any mandatory vaccination policies and procedures. There may also be exceptions or limitations on an employer’s ability to mandate vaccinations under certain federal employment statutes if, for instance, an employee requests an exemption based upon a disability or a sincerely held religious belief.
General Right of Employers to Require Vaccinations for At-Will Employees
As a general matter, employers are permitted to implement COVID-19 vaccination policies mandating that their non-union, at-will employees receive vaccinations as a condition of employment. Remember, the rule in Illinois and the United States is that employment is “At-Will” – meaning an employer can fire an employee for any reason, or no reason at all, so long as it is not an unlawful reason under some state or federal employment law. Accordingly, an employment policy which requires that at-will employees be vaccinated as a condition of future employment is not unlawful on its face under federal law.
Americans with Disabilities Act
Exceptions or limitations may arise, however, under the Americans with Disabilities Act, (“ADA”), depending on the circumstances.
One area where the ADA may be implicated is if an employee who is a “qualified individual with a disability” as defined under the Act were to request an exemption from receiving the vaccination on the basis of his or her disability. In such instances, whether the employer can still require the employee to be vaccinated and/or fire the unvaccinated employee will depend on whether the unvaccinated employee constitutes a direct threat to the health or safety of themself or others. A “direct threat” is defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.”
Whether an unvaccinated employee would meet the “direct threat” standard is not black and white. Therefore, an employer likely cannot implement a wholesale policy that automatically would result in termination for any and all employees who do not receive a COVID-19 vaccine. Rather, the determination of whether an unvaccinated employee constitutes a “direct threat” will depend on the totality of the circumstances under a four factor test. The four independent factors are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
If, after considering each of the four independent factors on a case-by-case basis, the employer determines that an unvaccinated employee constitutes a direct threat, then the employer still must engage in the ADA’s “interactive process” with the employee to determine whether a reasonable accommodation can be made to eliminate or reduce the threat. If, and only if, no reasonable accommodation can be made then, and only then, can the employer terminate the unvaccinated employee.
Another area where the ADA may be implicated is if the employer provides the vaccinations to its employees itself, or if it contracts with a medical services provider to come to the workplace to administer the vaccinations. In such instances, the ADA’s prohibition against “medical examinations” designed to elicit information about an employee’s physical or mental impairments would apply because the pre-vaccination questionnaires may reveal such information about a disability, and the employer would be privy to the employees’ answers to such pre-vaccination questionnaires.
Indeed, the EEOC recently issued guidance in which it made clear that such pre-vaccination questionnaires are subject to the ADA’s prohibition against such disability-related inquiries unless the employer can demonstrate that the disability-related inquiries are “job related and consistent with business necessity.” In order to meet that burden, the employer will have to demonstrate that an unvaccinated employee poses a “direct threat” as discussed above. This, however, would not apply if the employer’s policy permits employees to receive the vaccine from a third party — such as a pharmacy, public or private healthcare provider – with which the employer does not have a contract and would not be privy to the employees’ pre-vaccination screenings.
Title VII of the Civil Rights Act – Religious Exemption
In addition to disability exemptions, an employee may be exempt from an employer’s mandatory vaccination policy under Title VII of the Civil Rights Act of 1964 if receiving the COVID-19 vaccination would violate the employee’s “sincerely held religious belief.” Notably, the EEOC guidance on this point cautions employers not to probe too deeply into religious beliefs because the definition of “religion” is broad, and there is a presumption that religious beliefs are “sincerely held.” Once again, in order for an employer to terminate an employee who seeks an exemption from a mandatory vaccination policy due to a sincerely held religious belief, the employer must demonstrate that the unvaccinated employee would pose a “direct threat” to the health and safety of themselves or others which cannot be eliminated or reduced by a reasonable accommodation.
Duty to Bargain COVID-19 Vaccination Policies with Your Union
The information above discussed the limitations on an employer’s right to require COVID-19 vaccinations as a condition of employment in a non-union, employment at-will setting. If you are lucky enough to be represented by a union, then there are even greater limitations on your employer’s right to implement a mandatory vaccination policy.
Under the National Labor Relations Act, private-sector employers are required to bargain in good faith with the exclusive representative of a group of employees (i.e. the union) over wages, hours and terms and conditions of employment. Any policy which requires that all employees receive a COVID-19 vaccine as a condition of employment – i.e. get the vaccine or get fired – would constitute a “condition of employment” and a mandatory subject of bargaining. Thus, before an employer can implement any such mandatory vaccination policy in a unionized setting, it must first bargain in good faith with the union over such policy.
In Illinois, the same duty for public-sector employers to first bargain over such a mandatory vaccination policy arises under either the Illinois Public Labor Relations Act or Illinois Educational Labor Relations Act. However, public-sector laws may vary state-by-state. Therefore, if you are a public-sector employee outside of Illinois, you should refer to your particular state labor laws to determine what, if any, duty your employer has to bargain over any such COVID-19 vaccination policies or procedures.
It is important to remember that the duty to bargain in good faith over terms and conditions of employment also extends to the duty to provide information to the union upon request. Thus, when it comes to mandatory vaccination policies, unions will have the right to request a variety of information from the employer before any such policies or procedures can lawfully be implemented. Some examples of information which unions may request could include, but not be limited to:
• Which vaccine(s) will be acceptable under the policy?
• How long will the employees have to obtain their vaccinations?
• What are the consequences of failing to obtain the vaccine within that timeframe? Automatic termination? Unpaid time off until the employee secures the vaccination? Some other consequence or discipline?
• What are the procedures for determining exemptions for employees with a disability or sincerely held religious belief?
• Who will administer the shots – the employer, a contracted health service provider, or any third party provider?
• What if an employee is unable to receive the vaccine due to circumstances outside of their control, such as public unavailability of the vaccine, lack of appointment options, or because they had Covid or Covid-related symptoms within days of when they were supposed to receive their shot?
• Similarly, what if an employee receives the first shot but cannot receive the second shot due to complications, side effects or an adverse reaction from the first shot?
And the list goes on….
In short, employees who are represented by a union will have much more of a say in whether their employers can require mandatory COVID-19 vaccines at all, and, if so, how such mandatory vaccinations policies and procedures will be designed and implemented as a result of the employer’s duty to bargain with the union over terms and conditions of employment.
OSHA’s Latest COVID-19 Guidance
Finally, whether or not your employer implements a mandatory COVID-19 vaccination policy, OSHA still recommends that all employers adopt a formal COVID-19 prevention plan including control measures such as masks, social-distancing, barriers, work-from-home and/or staggered shifts, and adopting policies that encourage sick workers to stay home and not come to work, and implementing protections against retaliation for workers who raise COVID-19 related concerns. OSHA’s most recent updated guidance also advises employers to continue to require all employees to comply with all such control measures, even if they have already been vaccinated.