Vaccines in the Time of COVID: An Employer’s Perspective

by Mag Bickford and Chase Stoecker

In the time of Coronavirus, with many municipalities implementing restrictions on business and individual activity, banks may currently allow employees to work remotely to the greatest extent possible. However, given the nature of the business, many bank managers may be anxious to return to normal branch operations, with staff onsite, as soon as possible. With vaccines becoming available you may be wondering: Can I require bank employees to get a vaccine?

The benefits of vaccination, in general and in a given workplace, are many: improved employee health, fewer employee absences, and improved staff morale. But that doesn’t mean all employees are necessarily interested in being vaccinated.

The Equal Employment Opportunity Commission (EEOC) recently issued guidance which allows employers to require employees to receive an FDA approved COVID vaccine. Requiring an employee to receive a vaccination does not rise to the level of  what would constitute an impermissible medical examination under the Americans with Disabilities Act (“ADA”). However, an employer may not compel an employee to receive a COVID vaccine if the employee asserts a valid disability-related or religious objection. That is, if the vaccine presents a health risk due to a diagnosed disability (such as a severe allergic reaction, which has been reported), requiring an employee to receive the shot may represent a violation of (ADA). Likewise, requiring an employee to receive the shot despite a “sincerely held religious belief” may constitute a violation of Title VII of the Civil Rights Act (for example, if the employee’s religion prohibits vaccinations). Notably, simply not wishing to be vaccinated, even citing ethical objections, is typically not a sufficient legal argument should an employer require vaccination. An employer has the right to exclude those employees who do not have a sufficient legal argument under the ADA or Title VII of the Civil Rights Act from the workplace.

If your bank decides to require vaccination for employees and an employee seeks an accommodation under either the ADA or Title VII of the Civil Rights Act, you should ensure that the accommodation request process is documented and well-communicated. An interested employee will need to know how to go about that process, and it is her responsibility to make that request. Once an employee asserts a valid objection, the bank will need to engage in an “interactive dialogue” to discuss other options for that employee, such as allowing remote work, assigning him to a specific location within the bank, or even granting him a difference in performance in order to execute his work without being vaccinated. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available.

If an employee presents a valid concern outlined above, but the bank feels that it is essential for the employee to perform her existing role in its exact “pre-COVID” circumstances, the business may reasonably argue granting exception to the vaccine requirement would present a “undue hardship.” We expect these instances to come up over the course of the next year, and anticipate an interesting debate in the Supreme Court of the United States when they do.

The Occupational Safety and Health Administration (OSHA) has not issued clear guidance on mandatory vaccines except for in certain industries (such as healthcare), but it did allow employers to mandate flu vaccines in 2009 with limited exceptions. More guidance is expected from OSHA in coming months. It should also be noted that the National Labor Relations Act protects employees’ rights to engage in concerted activity, which includes employees who collectively discuss, object to, or protest employer-mandated vaccination programs. Additionally, existing collective bargaining agreement language may impact a vaccination program.

Of note, under normal circumstances, an employer would be prevented under the ADA from performing any kind of medical examination or making disability-related inquiries. However, the ADA also permits an employer to engage in a medical screening of its employees if there is a “direct threat to health and safety,” which according to EEOC guidance is met in this situation. Temperature checks, mandatory self-reporting of diagnoses and symptoms, and other recommendations published by the CDC have been accepted as compliant. The recent EEOC guidelines also permit employers to administer COVID testing to employees before permitting them to enter the workplace.

Neither the Alabama Department of Labor nor the Alabama Department of Public Health have published specific guidance regarding employer vaccination programs. Alabama is an at will employment state, which means that an employer has the right to enforce a vaccine policy. However, an employer should approach this right with caution as it is limited by those exemptions included under the ADA and Title VII of the Civil Rights Act summarized above.

The best practice considerations for banks considering vaccines for employees are:

  • determine your goal;
  • know your audience;
  • anticipate and address questions and concerns;
  • evaluate whether mandatory or voluntary vaccination makes sense for your workforce;
  • consider and address operational and productivity concerns;
  • analyze risks;
  • determine a policy which allows fairness and consistency;
  • keep in mind legal concerns; and
  • do the right thing.

If your bank deems it essential for employees to be vaccinated, you may elect to require vaccination. Employers who decide to make this requirement should review accommodation request and other policies and procedures, and should understand that certain employees may present valid refusal to receive the vaccine. At the end of the day, banks (indeed, any employer) should remember that members of the workforce are their first customers, and the bank’s performance depends on its employees’ ability to execute their jobs well.

Mag Bickford is chair of McGlinchey’s Labor and Employment practice  group, and practices in the firm’s New Orleans office. She represents businesses in labor and employment litigation and provides general legal counsel on a variety of workforce matters. Chase Stoecker defends employers in a wide range of employment matters, including cases brought under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. He also represents financial institutions in a variety of consumer financial litigation matters. He is an associate in McGlinchey’s Ft. Lauderdale office.