Mandatory COVID Vaccinations for Employees? Not Yet.

The recent roll-out of COVID-19 vaccinations has raised hopes of a 2021 return to the workplace for most public school employees. Although the present availability of vaccines is still quite limited, and the prospect of society reaching “herd immunity” is still many months away, questions are already being raised about whether an employer can mandate employee vaccinations as a condition of return to the physical workplace.

EEOC Guidance

On December 16, 2020, the federal Equal Employment Opportunity Commission (“EEOC”) generated headlines when it issued guidance stating that employers could require employees to undergo COVID-19 vaccination before returning to the workplace when an unvaccinated employee would pose a “direct threat to the health or safety of individuals in the workplace.” In addition to clarifying that a vaccination does not constitute a “medical examination” for purposes of the Americans with Disabilities Act (“ADA”), the EEOC guidance provides that an employer’s ability to exclude unvaccinated employees from the workplace would still be subject to ADA-based “reasonable accommodation” obligations should an employee decline vaccination because of a disability, or because of a sincerely held religious practice or belief. Those “reasonable accommodation” obligations may include allowing the employee to work remotely, based upon his or her specific circumstances.

The EEOC guidance identified several ways in which an employer could carry out a vaccination mandate. Employers could require employees to get vaccinated off-site by third parties, such as doctors or pharmacies. They could also choose to bring third parties on-site to administer the vaccine to employees. Also, employers could have one of their own appropriately licensed employees administer the vaccine. The manner of vaccine administration chosen by employers will determine whether ADA based restrictions on an employer’s ability to make health-related inquiries are triggered.

State Law and Contractual Considerations

The EEOC’s guidance statement does not mandate employee vaccinations. Nor does it remove any applicable state law or contractual constraints on a New York State public employer’s ability to require employees to undergo COVID-19 vaccination as a condition of returning to the workplace. If there was state authorization permitting employers to require vaccination, there would be collective bargaining implications and such a requirement would probably constitute a mandatory subject of bargaining. In the absence of a statutory requirement that public employees be vaccinated, New York public employers would have to bargain with their unionized employees over a requirement that bargaining unit members be vaccinated for COVID-19 in order to work in a school setting.

New York State law does not currently authorize employers to require nor mandate employee COVID-19 vaccinations; nor does it authorize employers to bar employees from the workplace who have not been vaccinated. While New York Public Health Law Section 206 authorizes the Commissioner of Health to establish and operate immunization programs for purposes of protecting the public health and preventing or minimizing the spread of disease, the statute also provides that “[n]othing in this paragraph shall authorize mandatory immunization of adults or children,” except with regard to statutorily authorized student immunizations and child inoculations. As currently written, Section 206 does not provide a basis for mandatory employee COVID-19 vaccines, or for an employer to require COVID-19 inoculation as a condition for returning to the workplace.

State legislation for mandated COVID-19 vaccines is a possibility down the road. In November of 2020, the New York State Bar Association’s House of Delegates recommended that New York State consider issuing guidance to state officials and public health authorities should it be necessary for the state to consider enacting a vaccine mandate. In the past, New York courts have upheld emergency health regulations requiring certain health care workers who had not been vaccinated against influenza to wear face masks during influenza season when working near patients. New York State Corr. Officers & Police Benev. Ass’n, Inc. v. New York State Office of Mental Health, 30 N.Y.S.3d 732 (2016); Spence v. Shah, 26 N.Y.S.3d 613, leave to appeal denied, 27 N.Y.3d 908 (2016). The courts found that the regulations were not arbitrary, capricious, irrational and/or unreasonable, and in fact were supported by sufficient scientific and factual evidence. Courts could be similarly receptive to COVID-19 related regulations.

From a practical perspective, the current limited availability of the COVID-19 vaccine serves as a disincentive for legislative action for mandatory vaccinations. However, as vaccines become more available, the idea of mandatory inoculation is sure to be considered by employers and the legislature. We will keep you updated on developments in this area of the law.

If you have any questions regarding the foregoing, please do not hesitate to contact us.