Last month, Corporate America received some interim clarity on one of the most important workplace issues of 2021. On December 16, the U.S. Equal Employment Opportunity Commission (EEOC) largely confirmed that employers can require employees to provide proof of COVID-19 vaccination without violating anti-discrimination laws such as the Americans with Disabilities Act (ADA), noting that such a requirement does not, in itself, constitute a medical examination under the ADA. Although the agency listed some exceptions, labor and employment attorneys believe the guidance is practical for employers.

At the same time, the EEOC did not fully endorse employer vaccine mandates. Jason Habinsky, a partner at Haynes and Boone and chair of its labor and employment practice group, commented on the guidance: "It's not as clear as you would expect." Habinsky's understanding is that the EEOC is saying "you can require it in some circumstances, but if you do, here are some things to watch out for."

The guidance also left out certain information about how mandates could affect specific categories of employees, such as pregnant employees and those under 18. These are just a few examples of areas where employers may face more questions than answers.

Question 1: Will the exceptions to a mandate "swallow the rule"?

The EEOC guidance details how vaccine mandates intersect with the ADA, Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act. The guidance clarifies that employers may need to exempt employees who cannot be vaccinated due to a disability or a sincerely held religious belief—although in some cases, these employees may be excluded from the workplace. However, there are at least two more groups of employees that employers should consider when developing vaccination policies.

Pregnant employees are one such group, protected under the federal Pregnancy Discrimination Act and various state and local laws, Habinsky noted. EEO laws require employers to provide reasonable accommodations for employees who need them due to pregnancy-related disabilities or medical conditions.

"If a pregnant employee states that her healthcare provider has advised her not to get the vaccine due to her pregnancy, the employer should treat that situation like any other request for accommodation based on a medical condition," Brett Coburn, a partner at Alston & Bird, said in an email to HR Dive. He added that the employer could consider the request and conduct an individualized assessment to decide how to respond.

Younger employees are another group that may be exempt. This is because the COVID-19 vaccine developed by Pfizer and BioNTech has been recommended by the U.S. Centers for Disease Control and Prevention (CDC) for individuals aged 16 and older. On December 18, the CDC announced that a second vaccine, developed by Moderna, received emergency use authorization for individuals aged 18 and older.

Barry Hartstein, a shareholder at Littler Mendelson and co-chair of its EEO and diversity practice group, said employers can expect to see clinical studies for individuals under 16. But in the meantime, employers that hire such employees "need to be careful" about continuing existing protocols and conducting frequent COVID-19 testing for these employees, Hartstein said.

Taken together, it is clear that there are several broad groups that could be exempt from a direct mandate. This alone may prompt employers to reconsider whether to implement such a policy.

"Right now, you have to ask yourself the question: will the exceptions swallow the rule? As an employer, our goal should be to do everything possible to limit the spread of the virus and keep people safe," Hartstein said.

Question 2: Is the current stage of vaccine rollout suitable for a mandate?

The current vaccination program operates under the emergency use authorization authority of the U.S. Food and Drug Administration (FDA). To date, two vaccines—the Pfizer-BioNTech vaccine and the Moderna vaccine—have received emergency use authorization.

Hartstein said that this authorization essentially means both vaccines are still in the trial phase and have not yet received full FDA approval. He added that vaccines are being rolled out in phases at the state level, primarily starting with healthcare facilities, many of which have indicated they will not mandate vaccination until full FDA approval.

Additionally, the fact sheets provided to patients receiving the vaccine disclose that they may have an allergic reaction to the vaccine, Hartstein noted, and employers may need to be mindful of this during planning. Sample fact sheets for the Pfizer-BioNTech vaccine have been provided electronically by the companies.

To date, early reports from governors indicate that implementing mandates will face obstacles even for employers operating in critical industries. During a December 17 U.S. Chamber of Commerce Foundation webinar, Arkansas Governor Asa Hutchinson said the state's first batch of vaccines would be prioritized for healthcare workers and sent to hospitals and pharmacies, with residents and staff of long-term care facilities next in line.

However, when asked about vaccination of essential workers, Hutchinson said it could be "more challenging," adding that Arkansas's current vaccine supply is insufficient to cover the state's entire essential worker population.

Hutchinson said determining how to allocate Arkansas's first batch of vaccines was "easy," but "as more vaccines enter the supply chain, the scrutiny and debate over how to allocate them will only increase."

Dr. Troyen Brennan, executive vice president and chief medical officer at CVS Health, said during the webinar that the U.S. has the capacity to administer 100 million to 150 million vaccine doses per month, but most people will need more than one dose. He added that vaccination of essential workers could begin in mid-to-late February 2021. "There's no reason to think this can't move relatively quickly," Brennan said.

This forecast comes as Axios reported that hospitals in several states received 25% to 40% fewer COVID-19 vaccine doses than expected during the week of December 20.

Habinsky said that as the rollout progresses, employers considering a mandate will need to pay attention to the availability and accessibility of vaccines.

Question 3: Should employees be given paid time off to get vaccinated? Should incentives be offered?

Habinsky said that incentivizing employees to get vaccinated is "critical," and offering paid time off for vaccination could be one way to do it.

Coburn said that providing paid time off to deal with side effects "is certainly a good idea," and some state and local laws may require it. According to the CDC, side effects of the Pfizer-BioNTech vaccine can include pain, swelling, and redness in the arm where the shot was given, as well as chills, fatigue, and headache. Coburn added: "For employees who have exhausted their paid time off or paid sick leave, employers might consider providing additional paid time off for this purpose, but they need to weigh this potential incentive against the risk of employee abuse—employees might get vaccinated and then use it as an excuse to take a day or two of paid leave even without side effects." Employers may also need to stagger employee vaccination dates to ensure adequate staffing coverage in the workplace.

Another option—and possibly a complete alternative to a mandate—is a more direct incentive. Steven J. Friedman, a shareholder at Littler Mendelson, said in an email to HR Dive that employers have long used health plans to provide cash rewards to employees, focusing on health outcomes and health-related activities, but vaccination incentives "would not be outcome-based or activity-based rewards."

Instead, vaccination incentives "would be viewed as participation-based rewards offered outside of a health plan, so EEOC rules would apply," Friedman said. EEOC regulations on participation-based health programs require employers to provide reasonable accommodations for employees with disabilities to ensure such employees can participate. If accommodation is not possible, the regulations require offering a reasonable alternative activity so that employees can still earn the reward without participating in the activity.

"With respect to vaccination, it is not yet clear what issues might arise in accommodating employees or finding reasonable alternatives for those who cannot be vaccinated," Friedman said. "However, it can be predicted that, based on preliminary findings, some individuals may be allergic to the vaccine and cannot safely receive it. In such cases, employers may need to allow these employees to participate in other activities to earn the health reward."

But Friedman said it is not yet clear how EEOC regulations would apply when employees refuse vaccination based on religious practices or personal objections. "Presumably, if the objection cannot be defined as disability-related, no accommodation or alternative would be required," he said regarding health plans with incentives.

Coburn said incentives may also appeal to employers concerned about large numbers of employees refusing to comply with a mandate, as such policies could put employers in the difficult position of either firing those employees or deviating from the policy.

Coburn added that employers could also encourage vaccination through educational campaigns and by covering vaccination-related costs. Habinsky noted that employers may be able to work with health plans to provide coverage for vaccination-related expenses.

Hartstein said that for employers looking to encourage vaccination, marketing may be just as important as incentives. For example, he suggested employers consider filming the CEO getting vaccinated to promote the idea that the vaccine is safe and effective.

Question 4: What if a group of employees refuses to get vaccinated?

In a previous interview with HR Dive, Hartstein noted that employers issuing vaccine mandates could face compliance issues under the National Labor Relations Act. If a group of employees protests COVID-19 vaccination, this could fall within the scope of protected concerted activity, he said.

On the other hand, employers operating in unionized workplaces may consider involving union representatives. "If you want a vaccination program to succeed, there is always the question of whether there is an obligation to bargain with the union before rolling it out," Hartstein said. "Involving union representatives in the conversation is really important."

Employers may also need to be aware of any vaccination guidance issued by the Occupational Safety and Health Administration (OSHA). The General Duty Clause of the Occupational Safety and Health Act requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees.

But Habinsky said there are still questions about whether employers should maintain a safe and healthy workplace by requiring COVID-19 vaccination, and OSHA has not yet issued specific guidance on this.

Question 5: How might the situation change as vaccines become more widely available?

Habinsky said that ultimately, vaccine availability will largely determine how much employers can mandate vaccination.

Coburn said that if vaccines become widely available in the coming months, employers may need to prepare for a wave of employees getting vaccinated at the same time. If many employees need time off to deal with side effects, this could put pressure on staffing levels.

Hartstein said that vaccines are not the "end-all, be-all" for employers responding to the pandemic. It is not yet clear whether vaccinated individuals could still asymptomatically spread the virus in the workplace, meaning preventive measures such as mask-wearing and social distancing should continue.

"The vaccine is just another arrow in the employer's quiver," Hartstein said. "It's one way to get us back to normal as quickly as possible."