Brian Mullin/Sherelle Wu: Can colleges mandate that their employees get COVID-19 shots?

Via The New England Journal of Higher Education, a service of The New England Board of Higher Education (nebhe.org)

BOSTON

As COVID-19 cases continue to surge nationwide, the newly approved COVID-19 vaccines cannot come soon enough. Although higher- education institutions (HEIs) are not at the top of the priority list to receive scarce early doses of the vaccine, colleges and universities should prepare for how they will handle vaccination on their campuses.

In general, both public and private HEIs may mandate that their staff receive the COVID-19 vaccine once it becomes available to the general public and may discipline an employee who refuses to receive the vaccine without cause. The U.S. Supreme Court has upheld the constitutionality of a state vaccine mandate that was “necessary for the public health or the public safety” (Jacobson v. Massachusetts, 197 U.S. 11 (1905)) as well as the exclusion of students from both public and private schools due to refusal to receive a mandatory vaccine (Zucht v. King, 260 U.S. 174 (1922)).

Under the federal Occupational Safety and Health Act (OSHA), employers have an obligation to provide a safe workplace free from serious recognized hazards and should do their part to encourage compliance with governmental health and safety guidelines.

In practice, however, HEIs should be aware that staff may be entitled to medical exemptions under the Americans with Disabilities Act (ADA) and religious exemptions under Title VII. Institutions should have a uniform policy for staff to apply for such exemptions.

When an employee requests an exemption, both Title VII and the ADA require that the institution engage in an interactive process to determine effective accommodations or alternatives to vaccination specific to that employee. Such accommodations may include permitting the employee to work remotely; temporarily reassigning the employee to a different, less public-facing position or workstation; or allowing the employee to take a temporary leave of absence.

In certain circumstances, if the exemption poses an “undue hardship” to the employer, the HEI may deny the exemption and require that the employee receive the vaccination. An undue hardship under Title VII is defined as a minimal cost or burden to the employer’s operations. This will vary depending on the size and nature of the HEI, but can be any economic or noneconomic expense that would create a burden on its operation such as, for example, changes to schedules that increase payroll expenses or result in other employees working less desirable shifts. In comparison, an undue hardship under the ADA requires an HEI to show a “significant difficulty or expense,” a much higher standard to meet.

Under both statutes, consideration of an undue hardship includes both financial costs as well as cultural or operational costs such as whether the accommodation would compromise the integrity of a seniority system—for example, an HEI that has a collective-bargaining agreement which provides for seniority for bidding for positions. Relevant factors in considering an undue hardship in the vaccination context would include, the risk to the public due to noncompliance; the availability of an alternate means of infection control such as personal protective equipment (PPE); and the number of employees who actually request an accommodation.

While an employee’s refusal or inability to receive the vaccination may cause jealousy or friction between coworkers, such a conflict would not constitute an undue hardship unless the accommodation would infringe on the coworkers’ rights or ability to perform their duties in a safe way.

In deciding whether to mandate (rather than strongly encourage) staff COVID-19 vaccination, each college or university should carefully consider its own community needs and circumstances. For example, a medical or nursing school that employs certain staff in health-care facilities may have a much more compelling need to mandate vaccinations than an institution whose employees continue to operate on a mostly remote or hybrid basis. As the vaccination rollout varies widely from state to state, institutions should consult their own state’s laws and narrowly tailor their own vaccine policy to match their local public-health agency’s guidance.

HEIs considering mandatory vaccines should maintain an objective written policy based on business necessity (i.e. actual job requirements) and apply the policy consistently. The institution can narrowly tailor the mandate to apply only to specific departments or positions. For example, an institution could mandate vaccination only for public-facing staff positions which are required to perform work on-campus rather than positions that may be performed remotely. The HEI should educate their employees on the benefits of vaccination and the process to request an accommodation.

An institution that has decided to require compulsory COVID-19 vaccination should provide free and convenient vaccine administration to its employees and should ensure that staff can take the necessary time off from work to receive the vaccine and recover from any side effects if necessary.

Importantly, given the need to carefully track vaccine administration to ensure individuals receive both doses at the appropriate time, colleges and universities must be careful to safeguard the privacy of employees’ medical information, including keeping it separate from personnel files.

Since the currently available COVID-19 vaccines are approved on an emergency-use basis, HEIs should carefully watch any changes in approval, efficacy and best practices. For example, pregnant women were not included in the clinical trials and may be excluded from initial vaccine administration. Institutions should also look out for additional guidance from the Centers for Disease Control, Equal Employment Opportunity Commission, or  OSHA.

Brian Mullin and Sherelle Wu are lawyers practicing in the Employment & Higher Education Groups in the Boston law firm of Bowditch & Dewey LLP.