The Race for a COVID-19 Vaccine – Planning for the Employer Response

THE RACE FOR A COVID-19 VACCINEPlanning for the Employer Response| SEPTEMBER 2020 |AUTHORSBarry A. Hartstein, Shareholder and Co-Chair of EEO & Diversity Practice GroupJason R. Stanevich, Shareholder Ramanpreet Dheri, Associate THE RACE FOR A COVID-19 VACCINE: PLANNING FOR THE EMPLOYER RESPONSECOPYRIGHT ©2020 LITTLER MENDELSON, P.C2Table of ContentsINTRODUCTION 3EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE 4 Title VII – Religious Discrimination 5 Is The Belief Religious? 5 Is It Sincerely Held? 6 Undue Hardship Standard 7 ADA and Reasonable Accommodations 8 General Requirements 8 The ADA and COVID-19 8 Applicable Standard for Requiring Vaccinations 9 Reasonable Accommodation 9OTHER RELEVANT STATUTORY SCHEMES 11 Pregnancy Discrimination Act 11 Workers’ Compensation Risks 11 Occupational Safety and Health Act 11 National Labor Relations Act, Bargaining Obligations, and Free Speech Considerations 12 Dealing with Challenges Based on the Anti-Vaccination Movement and Other “Protected Concerted Activity” 14 Privacy and Public Policy Concerns 15CONCLUSION 16APPENDIX A - EEO CHALLENGES TO EMPLOYER-MANDATED VACCINATION PROGRAMS 17APPENDIX B - ENSURING THE SAFETY OF VACCINES IN THE UNITED STATES 27THE RACE FOR A COVID-19 VACCINE: PLANNING FOR THE EMPLOYER RESPONSECOPYRIGHT ©2020 LITTLER MENDELSON, P.C3IntroductionMany employers are hopeful that a vaccine for COVID-19 will be the silver bullet that will enable employers to return to some semblance of a pre-COVID workplace. Assuming a vaccine is developed, can an employer mandate that employees be vaccinated before coming back to work? What happens when an employee cannot or will not take this vaccine, either for religious, medical, or other personal reasons? Can a union or group of workers successfully challenge employer-mandated vaccines? Aside from these potential challenges, are mandatory vaccinations the most appropriate response in fighting COVID-19? This Report reviews the legal landscape as it pertains to employer-mandated vaccines, and as important, whether options other than mandated vaccines need to be considered by the employer community. As discussed below, the case developments to date primarily have involved vaccination programs to minimize flu-related risks, particularly by employers in the health care field. These case developments, however, can serve as a critical guidepost in helping employers take appropriate action as vaccinations are developed for COVID-19. It clearly is not too early for employers to be carefully evaluating their options. Based on recent reports from the Centers for Disease Control and Prevention (CDC), preparations are underway for two coronavirus vaccines referred to as “Vaccine A” and “Vaccine B,” and the CDC recently advised public health agencies that limited doses of a vaccine may be available in late October or November 2020.1 The first doses of another vaccine, being developed by the University of Oxford in tandem with a major pharmaceutical company, also may be available in the United States by the end of 2020.2Despite the sense of urgency in developing and receiving approval for a COVID-19 vaccine, the employer community needs to be aware that there will be some significant delays until a vaccine is available for the general public. According to the CDC, a priority list has been developed for those who will eligible to receive the vaccine, which will be a four-phase process:3 Source: National Academy of Sciences, Discussion Draft of the Preliminary Framework for Equitable Allocation of COVID-19 Vaccine, http://nap.edu/25914.All of these factors need to be taken into consideration in developing a plan of action in dealing with a vaccine. As important, even after a vaccine is developed, many unanswered questions may remain. Are certain vaccines more effective than others? Will the effectiveness of a particular vaccine vary depending on an individual’s health status and/or age? For how long will a vaccine be 1 See Sheila Kaplan, Katherine J. Wu and Katie Thomas, C.D.C. Tells States How to Prepare for Covid-19 Vaccine by Early November, N.Y. Times, Sept. 2, 2020. 2 Id.3 See National Academies of Sciences, Engineering, and Medicine 2020. Discussion Draft of the Preliminary Framework for Equitable Allocation of COVID-19 Vaccine. Washington, DC: The National Academies Press.Phase 1Phase 1a “Jumpstart Phase”:• High-risk workers in health care facilities• First RespondersPhase 1b:• People of all ages with comorbid and underlying conditions that put them at significantly higher risk• Older adults living in congregate or overcrowded settingsPhase 2• Critical risk workers-workers who are both in industries essential to the functioning of society and at substantially high risk of exposure• Teacher and school staff• People of all ages with comorbid and underlying conditions that put them at moderately higher risk• All older adults not included in Phase 1• People in homeless shelters or group homes for individuals with physical or mental disabilities or in recovery• People in prisons, jails, detention centers, and similar facilities, and staff who work in such settingsPhase 3• Young adults• Children• Workers in industries essential to the functioning of society and at increased risk of exposure not included in Phase 1 or 2Phase 4• Everyone residing in the United States who did not receive the vaccine in previous phases.Equity is a crosscutting consideration:In each population group, vaccine access should be prioritized for geographical areas identified through CDC’s Social Vulnerability Index.THE RACE FOR A COVID-19 VACCINE: PLANNING FOR THE EMPLOYER RESPONSECOPYRIGHT ©2020 LITTLER MENDELSON, P.C4effective? Are there any side effects that may pose greater risks to certain individuals? In short, there may be a multitude of issues that will need to be addressed as employers weigh their options. From an employment perspective, employers need to take into account a broad range of issues, including but not limited to equal employment opportunity compliance, labor relations, workers’ compensation, employee safety and other evolving issues, including the anti-vaccine movement.Equal Employment Opportunity Compliance The EEOC first issued guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act in October 2009 after President Obama declared a National Emergency in response to the H1N1 influenza pandemic.4 Based on the 2009 guidance, less drastic steps were approved, but as a precursor for future events, the EEOC explained that the guidance may be modified depending on the severity and pervasiveness of a pandemic, and that one might become so severe that employers’ interests in protecting themselves and their businesses from the spread of disease could outweigh employees’ rights under the ADA and other discrimination laws.5On March 11, 2020, the coronavirus disease (COVID-19) was declared a pandemic. One week later, on March 19, 2020, the EEOC “re-issued” and updated the previously issued 2009 guidance. The EEOC declared that the World Health Organization (WHO), U.S. Department of Health and Human Services (HHS), and the CDC are the “definitive sources” of information about pandemics.6 The EEOC underscored that the 2020 guidance focuses on “implementing strategies in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic,” and acknowledges that the guidance may change “as the COVID-19 situation evolves.” As many employers are aware, based on the current “pandemic” finding, the EEOC clearly has permitted employers far more leeway than ever before in developing infection control strategies without violating federal discrimination laws.7 No one knows as yet how and when the pandemic will end, but the EEOC views the new rules as a temporary measure. At the time of issuance of the 2009 EEOC guidance, the EEOC expressly addressed vaccinations in a Q and A format, similar to other issues discussed in the guidance, and stated as follows:813. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).94 See Terri M. Soloman and Ronit M. Gurtman, Planning for a Pandemic: The EEOC Issues Guidance, Littler Insight (Oct. 27, 2009).5 See EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, (herein “Pandemic Preparedness Guidance”), last updated March 21, 2020 at Section I.B. and Section II.B.6 Id. at Section I. B.7 See Barry Hartstein and Therese Waymel, The Next Normal: A Littler Insight on Returning to Work – EEO Compliance, Littler Insight (May 11, 2020).8 See Pandemic Preparedness Guidance, Section III.B. Question #13.9 Id. and Footnote 36 in EEOC Pandemic Preparedness Guidance, including citation to the EEOC Compliance Manual Section 12: Religious Discrimination 56-65 (2008).THE RACE FOR A COVID-19 VACCINE: PLANNING FOR THE EMPLOYER RESPONSECOPYRIGHT ©2020 LITTLER MENDELSON, P.C5Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.To date, the...