Can (and should) Universities Require Their Employees to Obtain the COVID-19 Vaccine?
The approval, and the beginning of the administration, of the Pfizer and Moderna COVID-19 vaccines offers hope that the current pandemic’s days are indeed numbered. However, it will take at least several months before distribution is able to inoculate a sizable portion of the population. Even then, there is concern that a not insignificant percentage of the community may elect NOT to take the vaccine, even if the same is readily available – a recent Pew Research Center survey revealed that almost four-in-ten responding adults will definitely or probably not get the coronavirus vaccine. How then can (and should) institutions of higher education respond to this scenario to further their interest in protecting the health and safety of their manifold constituencies?
On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) issued anticipated guidance on the ability of employers (including universities) to require their employees to get a COVID-19 vaccination and related considerations. The guidance indicates that EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ recommendations and suggestions, and that an employer can mandate employee vaccination, so long as it observes well-established disability or religious exemptions.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and having such employee in the workplace poses a direct threat, the employer must determine whether a reasonable accommodation would eliminate or reduce the risk posed by having the unvaccinated employee in the workplace. If it is determined that there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean, however, that the employer may automatically terminate the worker. Employers will need to determine if any unpaid leave or other rights apply under the EEO laws or other federal, state, and local authorities.
A recent case out of California lends further support to a post-secondary institution’s authority to require employees to take a safe and efficacious vaccine, if the non-vaccinated employee will be required to access university premises and could thus potentially expose other community members to illness. Indeed, on December 4, 2020, the Superior Court of California denied a motion to preliminarily enjoin the University of California’s flu vaccination mandate in Kiel, et al. v. The Regents of the University of California, et al. The case relied on U.S. Supreme Court precedent upholding mandated vaccination programs that are narrowly tailored to achieve a compelling governmental interest – in this case, protecting health and safety by preventing the spread of influenza during the COVID-19 pandemic.
Notwithstanding the foregoing, it is important for Texas public higher education institutions, as state agency employers, to proceed with caution, and specifically consider United States Food and Drug Administration (“FDA”) rules related to mandating vaccines approved only under an Emergency Use Authorization (“EUA”) as well as any state legal and policy implications. Both the Pfizer and Moderna vaccines were approved by the FDA per its EUA process. All individuals who have an opportunity to take the vaccine must, by law, be advised that they have the right to refuse the vaccine.
The law administered by the FDA that governs the issuance of EUAs does not apply directly to employers. However, almost all states have developed an exception to the at-will doctrine that protects employees against termination resulting from their exercise of a statutory right. An argument could therefore be made that refusing the vaccine is a statutory right. This, though, bumps up against a public policy argument that employers must do what they can to preserve the health and safety of their workers and the public. It is expected that the FDA may issue additional guidance for mandatory vaccination, but, until then, Texas universities should be mindful of the EUA’s requirements and suggestions emananting from the state capital, such as the Governor’s recent statement that "the Lone Star State is prepared to swiftly distribute" the vaccine "to those who voluntarily choose to be immunized."
Even if we assume that employers (including universities) can legally require the COVID-19 vaccine, the more important question may be “should they require it?” There is, to begin with, the practical problem that many employees will not have access to the vaccine until at least the springtime. So, perhaps employers are better off taking a wait-and-see approach and see how things play out before crafting and implementing a policy mandating vaccination. In addition, while mandatory vaccination absent a disability or religious based objection may be lawful, employers considering their vaccination policy should also weigh potential effects of a mandate on employee morale. For some employers, implementing a voluntary, incentive-based vaccination program may be a better approach.
Please stay tuned to upcoming developments in this fast evolving area of the law, and contact the Office of Legal Affairs should you wish to discuss this topic further.
