COVID-19 Vaccinations: Thoughts for Employers

Dick Glovsky_106x126Williams_Kimberly_106x126by Richard D. Glovsky and Kimberly F. Williams

Practice Tips

As the COVID-19 vaccination becomes more readily available, many employers are considering whether to require that employees be vaccinated.  In December 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccination. Under this guidance, employers may implement a mandatory vaccination program or policy. However, before implementing such a policy, employers should give careful consideration to the legal issues that mandatory vaccination raises.

Legal Considerations for A Mandatory Vaccination Policy

If an employer decides to implement a mandatory vaccination policy or program, the following legal considerations should be evaluated.

First, an employer should determine whether to provide the vaccine to its employees itself or through a contracted third party or to require its employees to receive the vaccine from an independent third party such as a pharmacy or health care provider. Employers or their contracted third parties who provide the vaccine to their employers may only ask pre-screening questions that are “job-related and consistent with business necessity.” Employers should look to health care officials to determine the necessary pre-screening questions and delve no deeper than what the medical community advises is necessary. An employer whose pre-screening questions exceed the bounds of what is “job related and consistent with business necessity,” runs the risk of violating the Americans with Disabilities Act’s (“ADA”) prohibition against inquiries that elicit disability-related information. 

In contrast, if an employee receives the employer-required vaccine from an independent third party, the ADA’s “job related and consistent with business necessity restriction” will not apply. 

Second, under the EEOC guidance, an employer who requires vaccinations must allow for disability and religious exemptions. The guidance, consistent with the ADA, requires that employers exempt from mandatory vaccination requirements an employee whose disability (i.e. a physical or mental impairment that substantially limits a major life activity) prevents the employee from safely receiving the vaccine. If an employee claims they cannot safely receive the vaccine due to a disability, the employer must engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation such as working remotely, wearing a face mask, or limiting the employee’s contact with the public. 

Similarly, the guidance, in accordance with Title VII of the Civil Rights ‎Act of 1964 (“Title VII”), requires employers to provide an exemption or other accommodation if receiving the vaccine would implicate an employee’s “sincerely held religious ‎belief.” Proving a “sincerely held religious belief” is a relatively low bar.

In each of these instances, an employer does not need to provide an accommodation if doing so would pose “an undue hardship” on it. Undue hardship may include financial as well as accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the employer’s business. 

Third, an employer who is considering mandating vaccinations should consider liability issues. The current vaccinations have only received Emergency Use Authorization, meaning that individuals who have the opportunity to receive the vaccination also have the right to refuse it. This sets up an inherent conflict between an employer’s mandatory policy and an individual’s right to refuse the vaccine as well as potential liability if the employee should be injured or harmed as a result of receiving the employer-mandated vaccine. Whether Workers’ Compensation laws will cover such injuries remains an open question.

Pros and Cons of a Mandatory Vaccination Policy

In considering whether to implement a mandatory vaccination policy, employers should recognize the pros and cons. One obvious pro is that a vaccinated workforce may be a safer one. It may also help bring employees back to the workplace. Working in the office or other business locations may help increase productivity and profitability and provide more certainty to workforce availability. It may also allow employers to avoid certain COVID-related risks and liabilities.

On the other hand, many people are unwilling or hesitant to receive the vaccine. Thus, a mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Additionally, vaccine availability and eligibility should be considered.  It may not make practical sense to require that employees be vaccinated if certain employees are not yet eligible to receive the vaccine or the vaccine is in short supply.    

Pros and Cons of a Discretionary Vaccination Policy

Nothing compels employers to mandate vaccinations. Many employers have adopted policies and programs to entice employees to be vaccinated. This “carrot” approach has included paid time off (“PTO”) for time taken to be vaccinated and for absences due to the side effects of a vaccine or for assisting family members to be vaccinated, gift cards, free Lyft rides to vaccination centers, and cash awards. As of the writing of this article, the EEOC is considering providing parameters for such incentives.

Further, a discretionary vaccine policy may result in a more content workforce and avoids ADA and Title VII issues. It also eliminates the specter of liability from an adverse reaction to a vaccine or its withdrawal from the marketplace, and it diminishes the administrative burdens necessitated by a mandatory policy, especially if the employer is administering its own vaccine program.

On the other hand, a discretionary policy may create a less safe work environment and may result in lesser emphasis placed on employee presence in the workplace.

What Employers Should Do  

First and foremost, all employers should vigilantly follow guidance from the Centers for Disease Control, EEOC, and other federal, state, and local agencies. They should continue to comply with and reinforce all existing safe workplace protocols.

Employers who decide to require vaccinations should develop, adopt, and provide to their employees the policies and protocols that will govern. They should provide a reasonable period for employees to be vaccinated, keeping eligibility and other factors in mind. At the end of the period by which vaccinations are required, employers should require written evidence of vaccinations having been administered and engage in the interactive process with those employees claiming a disability or religious exemption. Employers will also need to decide whether to terminate all non-vaccinated, non-exempt employees or allow those who refuse to be vaccinated to work (or continue to work) remotely.

Additionally, any employer who is considering a mandatory vaccination program and who contracts with a third-party vendor should consider inserting indemnity and hold harmless clauses into such contracts. Under the Public Readiness and Emergency Preparedness Act, employers are insulated from federal and state tort liability if they are “program planners” of a vaccination program. Program planners include employers who refer the administration of vaccines to third party vendors.

Finally, because not everyone will be vaccinated, and the length of the efficacy of vaccinations is unknown, COVID and its mutations most likely will be with us for quite some time.  Consequently, employers will need to consider these issues for the foreseeable future.

Richard D. Glovsky, Co-Chair of Locke Lord’s Labor and Employment Practice Group, is a Partner in the Firm’s Boston office. He handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims, and is a trusted adviser and general counsel to various companies and their senior executives.

Kimberly Williams is a Partner in Locke Lord’s Dallas office with experience representing employers in matters involving claims of discrimination, harassment, retaliation and wrongful discharge. She provides employment counseling and advice to clients on matters including hiring, firing, and other disciplinary action, wage and hour issues, leave issues and compliance with federal and state laws and regulations.


Bostock v. Clayton County, Georgia, 590 U.S. ___, 140 S. Ct. 1731 (2020)

by Amanda Hainsworth

Case Focus

Title VII of the Civil Rights Act of 1964 has protected employees from discrimination “because of … sex” for more than half a century. 42 U.S.C.§ 2000e-2. Over time, Title VII has been construed to prohibit a range of different forms of sex discrimination, including sex stereotyping and sexual harassment. Yet some lower courts have stopped short of including LGBTQ workers within Title VII’s ambit, leaving LGBTQ employees in more than half of the states across the country without employment discrimination protections.

This changed in June when the Supreme Court of the United States held, in a landmark 6-3 decision, Bostock v. Clayton County, Georgia, 590 U.S. __, 140 S. Ct. 1731, 1737 (2020), that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and transgender status. This decision is a major victory for LGBTQ people and advocates, and has significant implications that extend well beyond the employment context.

Background

The issue came to the Supreme Court in a trio of cases that raised essentially the same question: does Title VII bar employers from discriminating against a person because they are gay or transgender?

In Altitude Express, Inc., et al. v. Zarda, No. 17-1623, Donald Zarda was fired from his job as a skydiving instructor within days of mentioning to his employer that he was gay.

In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107, Aimee Stephens was fired from her job after penning a letter to her employer disclosing her transgender status and intent to live and work full-time as a woman.

And in Bostock v. Clayton County, Georgia, No. 17-1618, Gerald Bostock was fired from his job after he began participating in a gay recreational softball league.

Each of these employees brought suit under Title VII, alleging unlawful discrimination because of sex. The Second and Sixth Circuits concluded that Title VII bars employers from firing people because of their sexual orientation (as to Mr. Zarda) or their transgender status (as to Ms. Stephens). In Mr. Bostock’s case, the Eleventh Circuit reached the opposite conclusion and held that Title VII does not prohibit employers from firing employees for being gay. The Supreme Court granted certiorari to resolve the circuit split over the scope of Title VII’s protections. Sadly, Mr. Zarda and Ms. Stephens both passed away before the Supreme Court issued its decision.

The Supreme Court’s Decision in Bostock

In Bostock, the Court unequivocally held that an employer who fires an individual for being gay or transgender violates Title VII. This is because, in firing a person for being gay or transgender, the employer has fired that person “for traits or actions it would not have questioned in members of a different sex,” which is exactly what Title VII prohibits. Bostock, 140 S. Ct. at 1737.

The Court relied heavily on the plain meaning of “because of . . . sex” at the time that Title VII was enacted. It proceeded on the assumption that, in 1964, “sex” signified male or female, and concluded that “because of” incorporated a traditional “but-for” causation standard, which the Court explained, “directs us to change one thing at a time and see if the outcome changes.” Bostock, 140 S. Ct. at 1739. Thus, an employer violates Title VII “if changing the employee’s sex would have yielded a different choice by the employer.” Id. at 1741. And, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” employers who do so are in violation of Title VII. Id.

To illustrate the point as to sexual orientation, the Court offered an example of an employer with two employees—one male and one female—both of whom are attracted to men and otherwise identical in all material respects. If the employer fired the male employee because he is attracted to men, but retained the female employee who is also attracted to men, then the employer has violated Title VII because the male employee’s sex was a necessary part of the termination decision.

To illustrate the point as to transgender status, the Court provided another example of an employer who fired a transgender woman because she was assigned male at birth. In this scenario, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Bostock, 140 S. Ct. at 1741.  Here again, the employee’s sex was a necessary and impermissible part of the termination decision.

The Court rejected the employers’ argument that Congress did not intend Title VII to reach discrimination against LGBTQ people in 1964 when it enacted the statute. In doing so, the Court pointed out that there is no such thing as a “canon of donut holes” where Congress’ failure to directly address a specific circumstance that falls within a more general statutory rule creates an implicit exception to that general rule. Bostock, 140 S. Ct. at 1746-47. Instead, Title VII prohibits all forms of sex discrimination, however such discrimination might manifest and regardless of how else the discrimination might be characterized.

The Court also rejected the argument that Congress’ failure to pass amendments to expressly include sexual orientation and transgender status should be relevant to the Court’s interpretation of the statute. The Court noted that “speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.” Bostock, 140 S. Ct. at 1747.

Finally, the Court rejected the employers’ argument that “sex” should be construed narrowly because of the “no-elephants-and-mouseholes canon” which “recognizes that Congress does not alter fundamental details of a regulatory scheme by speaking in vague or ancillary terms.” Bostock, 140 S. Ct. at 1753 (quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468 (2001)). While the Court agreed that the Bostock holding is certainly an elephant, it rejected the idea that Title VII—a major federal civil rights law that is “written in starkly broad terms” and has “repeatedly produced unexpected applications”—is a mousehole. Id. Instead, the Court concluded, “[t]his elephant has never hidden in a mousehole; it has been standing before us all along.” Id.

Implications

The potential implications of the Bostock decision are sweeping.

The largest and most obvious implication is that LGBTQ people now have nationwide protection against discrimination by any employer covered by Title VII (i.e., any employer with fifteen or more employees). Although Massachusetts’s nondiscrimination law has protected LGBTQ people from employment discrimination for years, see G.L. ch. 151B, § 4, Bostock represents a sea change for those states without any employment discrimination protections for LGBTQ people. Employers in those states now need to, among other steps, review and update policies and procedures and employee benefits packages to ensure compliance.

More broadly, while the Court’s holding was limited to Title VII, Bostock may mean that other federal civil rights statutes that prohibit sex discrimination also prohibit discrimination on the basis of sexual orientation and transgender status. This is because courts routinely rely on rulings in Title VII cases to inform rulings in cases involving other civil rights laws with comparable prohibitions on sex discrimination. There are more than 100 different federal laws that prohibit sex discrimination in a wide variety of different contexts, including in education, credit, housing, healthcare, and military service. Bostock means that all of those laws may also protect LGBTQ people. Bostock also calls into question the legality of the Trump Administration’s efforts to roll back federal civil rights protections for LGBTQ people in areas such as education and school athletics (Title IX), the military, and the Affordable Care Act.

Beyond these implications, there will almost certainly be a great deal of litigation related to the interplay between federal civil rights laws and employers’ religious beliefs.  Title VII contains a narrow exception for discrimination on account of religion, but the Court did not address the extent to which employers will be permitted to discriminate against LGBTQ people based on religious beliefs.

Bostock also has potential implications for the standard of review that should be applied to federal equal protection claims involving discrimination against LGBTQ people.  Rational basis review has been applied to such claims since the Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). But sex-based classifications have long been subject to intermediate scrutiny, and Bostock’s holding that discrimination against LGBTQ people is, at core, sex discrimination suggests that intermediate scrutiny should be applied to such claims moving forward.

And, finally, but perhaps most importantly, Bostock may help shine a light toward a world where LGBTQ people—and in particular Black and brown transgender people—can begin to live freely and openly, with a little less fear and a little less pain, and a little more opportunity to succeed and thrive.

*This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Attorney General.  Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.

 

Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office.