The elephant in the room


Is a mandatory COVID-19 vaccination policy right for your workplace?

On August 23, 2021, the Food and Drug Administration (FDA) fully approved the first COVID-19 Vaccine – the Pfizer-BioNTech vaccine. As a result, more employers are considering mandatory vaccination programs for their employees. While some employers implemented vaccination programs even with only emergency approval, others are feeling more comfortable now with the FDA’s full approval. The FDA’s approval is for those ages 16 and up and the vaccine is otherwise available with “emergency use authorization” (EUA) for those aged 12-15. Until now, Moderna, Johnson & Johnson (J&J), and Pfizer had EUA status in the U.S. as the pharmaceutical companies moved through the official approval process. Moderna and J&J are continuing to go through those processes.

With Pfizer’s approval and the resurgence of COVID-19, along with the Delta variant, employers are considering mandatory COVID-19 vaccination programs, wherein employees must be vaccinated or risk losing employment. Particularly in hospitality, where employees are constantly in contact with the public, this has become a topic of serious consideration. Some employers have also implemented a hybrid approach, where an employee must either be vaccinated or submit to weekly testing while taking other safety precautions (e.g. masking, social distancing, etc.).

The Equal Employment Opportunity Committee (EEOC) has weighed in and provided guidance, stating an employer may require all employees to be vaccinated, assuming the requirement is job related and consistent with business necessity. However, the EEOC reminds employers they cannot throw the Americans with Disabilities Act (ADA) out the window. Employers cannot require a disabled employee to get the vaccine (assuming they state they cannot get the vaccine due to the disability) unless the employer can demonstrate the disabled employee would be a “direct threat” to the health or safety of him/herself or others in the workplace without receiving the vaccine. An employer also must determine if there is a reasonable accommodation available that would reduce or eliminate the threat.

If an employer implements a mandatory vaccination program and an employee requests an accommodation, the employer must engage in an interactive dialogue to find a solution that will allow the employee to perform essential job functions, while at the same time not creating an undue hardship for the employer. Employers should train their managers, supervisors, and HR employees regarding the ADA process before implementing a mandatory vaccination program. Depending on the job in question, the accommodation may include working from home, masking, distancing, COVID testing on a weekly basis, etc. COVID-19 vaccination information is confidential medical information and should be securely stored with limited access. Employers should keep ADA information confidential and not disclose it beyond the core group who needs to know. Employees receiving accommodations should not be retaliated against.

In addition to disability related accommodations, employees may seek religious accommodations, pursuant to Title VII. Similar to the disability discussion, employers must determine if they can grant the accommodation request unless it would post an undue hardship. The EEOC states, “the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.” While the EEOC does not encourage a lot of questioning of religious beliefs, employers may consider having an employee sign an attestation of beliefs when requesting an accommodation. If the employer has an objective basis for questioning the religious nature or sincerity of the belief, they can request additional supporting information.

Employers should consider the “soft” factors, such as employee attitudes towards the vaccine, transmission in the local community, how the mandate might affect business, public relations, etc.

Employers should review their state and local laws before implementing a mandatory vaccination policy. Montana, for example, has a law that prohibits discrimination based on vaccination status and also states that individuals cannot be required to receive a vaccine that only has EUA approval. It is unclear what changes may be made to that law and others based on the FDA’s approval of the Pfizer vaccine.

While there are a host of issues to consider with respect to mandatory COVID vaccination programs, employers should review their state and local laws, keep abreast of what the CDC is recommending, and make the best decision for their employees and customers.

deepa n. subramanian

Deepa N. Subramanian, Esq., is a shareholder with Ogletree Deakins in the firm’s Atlanta office. She represents employers in all aspects of employment law, including employment litigation and counseling, and she advises and defends clients in federal and state employment-related lawsuits, including actions alleging discrimination, harassment, retaliation, violations of wage and hour law, and breach of contract.


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