Can Your Association Adopt a COVID-19 Vaccine Requirement?

guattery_vaccine requirement February 1, 2021 By: Peter D. Guattery

In the coming months, association leaders will need to evaluate a range of legal questions and practical concerns as they consider establishing a COVID-19 vaccination policy for their workplace and events.

Vaccines approved for emergency use by the FDA are now providing a welcome doorway out of the COVID-19 pandemic. At the same time, they are unlocking a range of legal issues for associations concerning vaccine mandates. May an association require employees to be vaccinated before they return to the office? And, more broadly, may it require vaccination for attendees at its meetings and conferences?

Here are some of the key issues that any association should consider before implementing a vaccine policy.

Employment Issues

Nothing in the law specifically prohibits an association from mandating vaccinations for its onsite employees. However, a range of federal laws—such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the National Labor Relations Act, and laws affecting the privacy of medical information—can directly affect a covered employer’s vaccination policy. Beyond this are practical concerns such as access, supply, distribution, and administration of the vaccine. Associations framing a policy in this area should keep several employment law issues in mind.

Privacy of medical information. Guidance issued by the Equal Employment Opportunity Commission (EEOC) in December 2020 clarifies that a vaccination is not a “medical examination,” which might implicate certain employer obligations under the ADA. However, employee pre-screening for a vaccine to avoid possible adverse reactions or other complications raises ADA concerns about medical inquiries, and it may implicate the federal Genetic Information Nondiscrimination Act.

Therefore, it is best for employees to be vaccinated by a third party and provide proof of vaccination to the association, rather than receive the vaccine from a health professional that the organization brings to the office. Be aware that the EEOC expects employers to advise employees who provide proof of vaccination not to disclose personal medical or health information protected under either law when doing so.

Employee objections and reasonable accommodations. A second concern under the ADA is handling employee objections to a vaccine based on an underlying disability, which may make a vaccine ill-advised or even potentially life-threatening. EEOC guidance states that employers in such a situation need to determine whether a reasonable accommodation would permit the employee to perform the job without posing an “undue hardship” to the employer or presenting a “direct threat” to coworkers or others. Telework is one possible accommodation to the extent job duties can be performed remotely.

Employee incentives may work better than a mandate in inducing employees to get vaccinated, with fewer legal considerations.

Employers will need to take each case as it presents itself and weigh the information the employee provides against available public health information and effective safety measures before taking any action to terminate an employee objecting to a vaccine for such reasons. The EEOC already appears to be signaling that “undue hardship” and “direct threat” may be difficult to establish, particularly in low- to medium-risk work environments where additional safety and health measures, such as masks, social distancing, and remote work, may be effective and reasonable.

The EEOC also has cautioned that an employer must provide a reasonable accommodation for an employee who objects to vaccination based on a sincerely held religious belief, practice, or observance unless it would pose an undue hardship for the organization. In this context, the standard for an undue hardship is lower than in the ADA context—one that has more than a de minimis cost or impact on the employer. A result, the outcome of a religious accommodation request may differ from the outcome in a case involving a disability.

In addition, both federal and state law may protect pregnant employees from adverse employment actions if they decline the vaccine due to pregnancy-related concerns. Also, coordinated employee opposition to vaccination requirements may give rise to questions of protected concerted activity under the NLRA, a rule that applies to nonunion and union workplaces alike. For unionized workplaces, employers should check whether their collective bargaining agreements give them unilateral discretion to adopt a vaccine policy.

Organizational culture. Beyond these legal issues are questions of organizational culture and employee morale. Employee incentives may work better than a mandate in inducing employees to get vaccinated, with fewer legal considerations. Also worth noting is that the current vaccines are approved only under emergency use authorizations (EUA), and people receiving these vaccines must be advised of their right to refuse. Whether the public policy of EUA vaccines being voluntary limits the right of a private employer to require vaccination is unclear, but it remains a point of concern at this early stage.

Meetings and Conferences

Mandating vaccinations for annual conferences or regional meetings presents a different scenario, despite similarity in the language used in the legal analysis. Federal and state employment laws generally do not apply to association meetings, at least with respect to nonemployees. However, Title III of the ADA prohibits “public accommodations” from applying eligibility factors that screen out, or tend to screen out, individuals with disabilities or denies them the opportunity to participate in or benefit from a good or service. Events held in rented, publicly accessible venues are subject to Title III. 

Mandating vaccinations among attendees poses two specific Title III issues:

  • Title III permits imposing legitimate safety requirements based on actual risks and not speculation or stereotyping.
  • An individual may be excluded from attendance where it may be determined that the person poses a “direct threat” to the health or safety of others.

Courts interpret the second provision narrowly to where the risk cannot be reduced or eliminated to acceptable levels. Because this is an individualized requirement, it may be of little use to introducing a general vaccine mandate.

Whether a vaccine mandate passes muster as a legitimate safety requirement remains to be seen. Much will depend on the situation with COVID-19 as vaccinations become more generally available and as more data emerges as to whether vaccination protects against transmission of the coronavirus. In any case, there likely will remain an obligation to make an accommodation for a disabled individual in order to permit their meaningful participation.

In short, a vaccination mandate requires planning and coordination to the same extent as other safety measures. Associations should take employment and meetings issues into account in their COVID-19 response plan as vaccines become more widely available.

Peter D. Guattery

Peter D. Guattery is a partner at Whiteford Taylor Preston LLP in Baltimore.