Many employers are asking whether they can require employees to receive the new COVID-19 vaccines. The answer is not crystal-clear.

The issue
Many health care providers and other employers already have mandatory vaccine policies for the routine flu. A mandatory policy must allow for certain exceptions in order to comply with the Americans with Disabilities Act and other anti-discrimination laws. For example, exceptions must be made that will allow reasonable accommodations for certain health conditions and religious beliefs. Those mandatory policies have generally been upheld by the courts as long as the appropriate exceptions are made.

The situation is potentially different with the COVID-19 vaccines. The three vaccines that have currently been approved by the FDA for use in the United States (Pfizer, Moderna, and Johnson & Johnson) have received only emergency use authorization (EUA) from the FDA. The issue created by the EUA status is that the federal statute providing for the emergency use allows the FDA to establish conditions on administering the vaccine. One condition the FDA has established is the requirement to inform a person receiving the vaccine of “the option to accept or refuse administration of the product.”

It is not clear whether that statute prevents private (non-governmental) employers from disciplining employees who refuse to be vaccinated while the vaccine is still in the emergency use authorization status. The “at-will” employment rule in Virginia would seem to allow private employers to impose that discipline.

EEOC guidance
The Equal Employment Opportunity Commission (EEOC) recently issued new guidance on this subject. The EEOC guidance addresses an employer’s options if an employee refuses to be vaccinated and no reasonable accommodation is possible:
“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.”

Although that guidance is not clear, it seems to suggest that an employer may terminate an employee who refuses to get a COVID-19 vaccine, as long as a reasonable accommodation for health or religious reasons cannot be made.

Virginia Attorney General Opinion
On April 26, 2021, Virginia Attorney General Mark Herring issued an official opinion concerning whether Virginia public colleges and universities may condition a student’s attendance on receipt of an approved COVID-19 vaccine. Herring’s opinion discusses the FDA’s emergency use category and the EEOC’s guidance, and concludes that a mandatory vaccine policy for the students is permissible. Although that opinion does not deal with employees in the workplace, its reasoning can be considered by employers who are grappling with a mandatory vaccine policy for their employees.

Tax credits for providing vaccination paid leave
A new federal law might help employers decide whether to impose a vaccination requirement. Some employees are reluctant to get vaccinated because they fear losing time from work if they get sick from the vaccination. To encourage more widespread vaccinations in the workplace, the American Rescue Plan now provides a paid-leave tax credit for employers that provide full pay for employees who take time off to get and recover from a COVID-19 vaccination. The credit is available to organizations with fewer than 500 employees and covers up to $511 per day for each vaccinated employee.

Encouraging vaccinations
Given the EEOC guidance and the Virginia Attorney General’s opinion, Virginia employers will likely be successful in defending a wrongful termination claim if the employer terminates an employee who refuses to get a COVID-19 vaccine, as long as a reasonable accommodation for health or religious reasons cannot be made. Rather than implementing a mandate that could force difficult decisions, however, an employer might instead want to take steps to encourage and incentivize employees to get vaccinated. One step might be to notify employees that they will not lose pay or be required to take PTO days because they get vaccinated. Employers could offer additional time off, gift cards or small cash bonuses as incentives. The EEOC has issued unclear guidance about the limits of incentives because of non-discrimination rules, but it is clear that modest incentives are permissible.

Employers understandably want to create a safe workplace for their employees, and should weigh all the pros and cons before deciding whether to require COVID-19 vaccinations.