Now that the Food and Drug Administration has provided emergency use authorization (EUA) for two COVID-19 vaccines, can local government employers require their employees to be vaccinated?

The short answer is, “Yes,” with the usual legal exceptions.

Diane Juffras, professor of law and government, University of North Carolina, provides an excellent overview of the legal framework that allows government employers to require some or all of their employees to be vaccinated "as a condition of employment subject only to medical exceptions required by the ADA and religious exceptions required by Title VII of the Civil Rights Act of 1964."

She points out that Constitutional basis for mandatory vaccinations began when the Supreme Court upheld a Massachusetts law that permitted municipalities to order vaccination of all residents in the 1905 case of Jacobson v. Massachusetts, 197 U.S. 11. In that decision, the court also made clear that an exception for a person with a medical contraindication should be allowed.

EEOC and ADA Laws

The Equal Employment Opportunity Commission (EEOC) recently issued new guidance on workplace anti-discrimination laws and their relationship to COVID-19 vaccination. This latest guidance follows a series of updates to its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act publication to include discussion of COVID-19. The EEOC administers the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.

Some of Juffras’s highlights of the EEOC’s guidelines on mandatory COVID-19 employee vaccinations follow:

• "While the ADA and Title VII continue to apply during the COVID-19 pandemic, they do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control (CDC) and state and local public health authorities about what steps employers should take regarding the spread of this disease.
• A vaccination is not a medical examination. Thus, it is not subject to ADA’s regulation of medical examinations of employees.
• According to the CDC, health care providers should ask certain questions before administering the vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. But pre-vaccination medical screening questions are likely to elicit information about a disability and therefore could fall under the ADA’s regulation of medical examinations of employees. How the vaccination is administered may determine how the ADA applies to the pre-vaccination screening.
  • In the first situation, the pre-vaccination questions are simply not subject to the ADA’s regulation of medical inquiries. When an employee is vaccinated by an independent entity that is not acting on the employer’s behalf, such as the employee’s personal physician, an independent medical clinic, a retail pharmacist, or a local health department that is not sharing information with the employer, pre-vaccination screening questions are not disability-related inquiries restricted by the ADA. This would be true even where the employer has required the employee to receive a COVID-19 vaccine.
  • In the other situation, however, pre-vaccination medical questions are subject to the ADA’s medical-injury regulations, but are unlikely to violate them. When the pre-vaccination questions are asked by the employer or by a third-party contractor brought in to administer vaccinations on the employer’s behalf, they do fall under the ADA. For such questions to be lawful, the employer must show that these inquiries are ‘job-related and consistent with business necessity.’ In the case of vaccination against COVID-19, to show that the pre-vaccination screening is job-related and consistent with business necessity, an employer would have to have a reasonable belief that employees who did not answer the questions and, therefore, did not receive a vaccination, would pose a direct threat to the health or safety of themselves or others. The EEOC has expressly recognized that COVID-19 satisfies the direct threat standard.
• An employer may require proof that an employee has received a COVID-19 vaccination."

Religious Exemption

Another consideration is a religious exemption. Once an employer is notified that an employee has a religious belief, practice, or observance that forbids taking a COVID-19 vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship. While it is easier for an employer to meet the test for undue hardship under Title VII than under the ADA, employers are advised to apply the same analysis for a religious exemption as they would for an ADA accommodation.

Stay Updated

Initially, the supply of vaccines will not meet the need, even for health care workers, nursing homes, first responders, and others who have first priority. Be aware of the priorities for vaccinations in your state or territory as they can vary and are posted on the Center for Disease Control’s website. To find the latest plan, go to: https://www.cdc.gov/vaccines/covid-19/covid19-vaccination-guidance.html

ICMA is continuing to track questions and concerns about vaccine rollout from members in anticipation of upcoming webinars and additional resources in early 2021. Visit ICMA Connect to post yours or send via email to covid19@icma.org.