The COVID-19 Vaccine and Healthcare Employers: To Mandate or Not to Mandate?

Footnotes for this article are available at the end of this page.

With COVID-19 vaccines now being distributed to healthcare facilities, including hospitals, long-term care, and other healthcare providers, employers in these industries are faced with an immediate decision: whether to mandate that employees required to work at facilities and/or who otherwise will come into contact with patients, residents, and other employees take a COVID-19 vaccine, or whether to take a softer consent-based approach. Companies who do business with hospitals and other healthcare facilities face this same decision, particularly with respect to their employees who must enter hospitals and other healthcare facilities as part of their normal job functions. Given the pushback to prior mandates issued during the COVID-19 pandemic and historical concerns over the safety of and intrusion associated with any kind of vaccine, employers have to anticipate that a significant number of their employees will at least be reluctant to take even approved COVID-19 vaccines. At the same time, employers legitimately fear that, if they continue to permit unvaccinated employees to have exposure to other employees, patients, and residents, they are inviting unnecessary and prolonged business and legal risk. This article accordingly will outline the legal issues for consideration by these employers when deciding whether to implement a consent-based or mandatory vaccination policy in light of the limited guidance issued to date, and how to best implement any such policy.

The State of the Vaccine

The Food and Drug Administration (“FDA”) has determined that the Pfizer-BioNTech and Moderna COVID-19 Vaccines have met the criteria to be distributed to the public under the FDA’s Emergency Use Authorization (“EUA”) procedures. Even without going through the full approval process, the FDA has concluded that available data provides clear evidence that these vaccines “may be effective in preventing COVID-19” and that “the known and potential benefits outweigh the known and potential risks, supporting the vaccine’s use in millions of people 16 years of age and older, including healthy individuals.” In making this assessment, FDA considered the material threat posed by COVID-19 infectious agents and the totality of the available scientific evidence (e.g., clinical trials, in vitro data) to make an overall risk-benefit determination.  The FDA was able to issue EUAs for these vaccines because the Department of Health and Human Services (“HHS”) previously declared, in February 2020, that COVID-19 has the significant potential to affect national security. 

The FDA’s issuance of EUAs for the COVID-19 vaccine is important because it could preempt state and/or local law, whether statutory or common law, that arguably imposes different or additional requirements on the administration of the vaccine in the context of the COVID-19 pandemic. Thus, any EUA could preempt any contrary state law governing, e.g., informed consent and the administration of the vaccine, including the prescribing and/or dispensing of the vaccine. While Congress has not adopted, and does not appear ready to adopt, a broad liability shield for COVID-19 as part of ongoing stimulus package negotiations, the existing body of FDA law could provide a shield against certain kinds of statutory and tort claims brought by users or objectors to the vaccine as long as vaccines are administered in strict accordance with any EUA.  This kind of liability shield, however, would not apply to claims arising from the threshold question raised above: whether to attempt to mandate the taking of the vaccine for employees at risk of contracting or spreading COVID-19.

Moreover, the FDA has insisted, as part of the EUA process, that potential users of the vaccine be informed that they do not have to take the vaccine. In this regard, the FDA simply sought to avoid any kind of federal mandate that the vaccine must be taken by all persons who are able to take the vaccine safely. The FDA’s decision, standing alone, however, says nothing about what healthcare employers can do with respect to their at-will employees who refuse to take the vaccine notwithstanding business need.

Existing Vaccine-Related Regulatory Guidance for Employers is Incomplete at Best

Recognizing that we are in the “lame duck” period between the Trump Administration and President-Elect Biden’s Administration, the guidance issued for employers to date regarding the vaccine has been limited. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated pandemic-related Q&As that favor a voluntary vaccination approach, but do not expressly prohibit a mandatory policy with appropriate “outs” for disability and religious accommodations.6  The Occupational Health and Safety Administration (“OSHA”) has been silent on the impact of EUA-authorized vaccines in the workplace. Understanding that the recent EEOC guidance is informative, we must also look to guidance from prior pandemics, including earlier in the current pandemic, to determine what decisions may be subject to valid attack primarily under, e.g., the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and the Occupational Safety and Health Act (the “OSH Act”).

During a Pandemic, Vaccinations of Employees are Permitted

In 2009, during the H1N1 virus, the EEOC issued guidance titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” In this guidance, the EEOC announced pandemic-related exceptions to the general rule that employers may not require “medical examinations” or make disability-related inquiries of its employees.8  During the H1N1 pandemic, the EEOC concluded that employers could not compel employees to take the flu vaccine unless they allowed for medical and religious accommodations, as discussed below. The EEOC did not, however, state that mandatory vaccines were prohibited, particularly if an employer appropriately factored potential individual accommodations for disabilities and sincerely held religious beliefs. At most, the EEOC suggested a preference for policies that encouraged versus commanded vaccinations.9

Moving this analysis forward, the World Health Organization declared COVID-19 a pandemic earlier this year.10  The EEOC then updated the EEOC Pandemic Guidance, see n.8 supra, on March 21, 2020. With this declaration and for as long as COVID-19 remains a declared pandemic, an employer can ask an employee or a post-offer candidate for employment to, e.g., submit to COVID-19 testing if it is job-related and consistent with business necessity. In this regard, the employer must have a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.11  In turn, a “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”12  Importantly, the Centers for Disease Control (“CDC”) has determined that COVID-19 poses a “direct threat,” which the EEOC then acknowledged in its Pandemic Guidance.13

The EEOC’s Recent Vaccine Guidance

With the updated guidance issued on December 16, 2020, the EEOC stated that vaccines are not prohibited “medical examinations,” but that the questions elicited in vaccine administration implicate ADA and Title VII concerns. Specifically, the EEOC opined as follows:

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” ….

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”14  

Notwithstanding the foregoing, the EEOC did not state, as it easily could have, that employers cannot institute mandatory vaccine policies. Instead, the EEOC encouraged the offering of voluntary vaccine programs, and simply reiterated that disability and religious accommodations need to be factored by employers. (While accommodations are discussed below, logically they should not be an issue under a voluntary vaccination program, as persons could just “opt-out” in lieu of seeking accommodations.)

The EEOC’s guidance notes that, according to the CDC, health care providers should ask certain questions before administering any COVID-19 vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination.15  If employers provide the vaccine (or contract with a separate company to provide it on their behalf), then the pre-vaccination medical screening questions are subject to ADA standards for disability-related inquiries, except as noted below.16  For mandatory vaccination programs, this means that questions must be job-related and consistent with business necessity.17  According to the EEOC, “[t]o meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”18  Importantly, if vaccinations are part of an employer’s voluntary program, or if the employee receives the vaccine from a third party that has not contracted with the employer (e.g., their healthcare provider), then the EEOC has stated that these ADA restrictions do not apply to the screening questions.19 In so doing, the EEOC has more than gently encouraged employers in general to pursue voluntary vaccination policies instead of mandating vaccinations (without saying that the latter is per se problematic under the ADA).

Distilling all of this down to straightforward tenets, healthcare employers are much better positioned than employers in other industries to claim that the vast majority of their employees pose a direct threat to others because of the exposure to and the potential spread of COVID-19. Stated differently, healthcare employers should have little difficulty concluding, based on objective evidence, that any employees who potentially have contact with other employees, patients, or residents should, as a general rule, take approved COVID-19 vaccinations. If, however, certain employees or classes of employees will have no such contact – think of the growing number of employees permitted to work exclusively on a remote basis – that general rule may not apply to those persons. Moreover, subject to the accommodations discussed below, any policy requiring or encouraging vaccinations should apply to existing employees and all candidates for employment after (and not before) offers of employment are issued.

Reasonable Accommodations for Disabilities

In terms of potential reasonable accommodations for disabilities, any accommodation has to enable the employee to perform the essential functions of his or her position. However, under the ADA, an employer is not required to provide a reasonable accommodation that will not assist the employee to perform such essential job functions; will cause an “undue hardship”20  (meaning “significant difficulty or expense”); or will pose a direct threat to the health and safety of others.21  Therefore, employers, including those in the healthcare industry, seeking to mandate or encourage COVID-19 vaccinations should:

  1. Do a particularized analysis of which jobs will have personal contact with others;
  2. Exempt persons who are on leave or who are working exclusively on a remote basis from any vaccination policy until such persons return to work where they will have contact with others; and
  3. Establish consistent protocols for dealing with individually sought exemptions or reasonable accommodations from any vaccination policy.

With respect to any requested accommodation, the employer is entitled to receive supporting information from a healthcare provider that the individual either cannot take a COVID-19 vaccine consistent with manufacturer instructions or has a medical condition that would preclude the safe taking of the vaccine. Subject to such verification, the employer then has to determine whether the individual still can do the essential functions of the position through other means. These accommodations, again determined on an individualized and non-discriminatory basis, could include working remotely, mandating that the employee wear a mask and/or face shield at all times, and/or segregating the employee from others physically in the workplace. As this analysis indicates, a primary disadvantage of a compulsory vaccine policy is the need for the sound administration of reasonable accommodation requests.

Moreover, data (and related EEOC or other legal guidance) addressing the relative efficacy of accommodations such as masks, face shields, and physical distancing versus the efficacy of the COVID-19 vaccine in addressing the threat posed by COVID-19 likely is months away. This reality arguably leaves room for debate as to whether employers, in the immediate future, should take a slower approach in mandating vaccines versus mandating other safety measures in the workplace. With that said, healthcare employers again are better positioned to argue that they should be allowed to mandate more, e.g., the taking of vaccines, the wearing of masks, and the maintenance of social distancing, because of the particular risks of spread in their facilities.

Accommodations for Sincerely Held Religious Beliefs

Based on surveys as to whether people intend to take COVID-19 vaccines,22 it is more likely that healthcare employers will face general employee backlash than a significant number of employees who request medical accommodations from vaccines. As a general rule, there is no federal law providing protection for political or philosophical objections to any COVID-19 mandates, hence the ability to enforce mask mandates without any real legal challenges to date. Furthermore, even the states that have waded into this territory (and Georgia is not one of them) tend to regulate restrictions on legal, off-duty conduct, as opposed to conduct in the workplace.

With that in mind, Title VII generally provides that employers have to consider reasonable accommodations for sincerely held religious beliefs. In this regard, Title VII protects a “religious practice or belief,” which is defined as a “moral or ethical belief [ ] as to what is right and wrong which [is] sincerely held with the strength of traditional religious views.”23  While the courts have historically defined religious beliefs broadly (even in decisions involving witchcraft), employers are entitled to seek independent verification of and test any professed belief.24  Therefore, employers, including healthcare employers, with mandatory vaccine policies should not immediately dismiss objections to vaccines as political or philosophical and instead consistently administer any reasonable accommodation requests as they come in.

Contrary to the ADA, however, the undue burden that an employer must show under Title VII for rejecting potential reasonable accommodations is a far lower hurdle to leap. Indeed, under Title VII, a religious accommodation can be rejected if it poses more than a de minimis cost to the employer.25  For healthcare employers in the context of COVID-19, this de minimis test facially appears easy to meet except perhaps in situations where employees have virtually no contact with others and/or can be physically segregated at all times without significant additional cost. (Even then, the employer could still point to the challenges in controlling the spread of COVID-19 even after implementing other protective measures.)

Under the Trump Administration, however, the EEOC has considered facemasks as an acceptable reasonable accommodation alternative to the flu vaccine,26  and has been aggressive in advancing religious accommodation challenges to vaccines, albeit in dissimilar contexts.27  It seems that a vaccine policy that appropriately contains a process to vet and hear potential religious accommodations, with a real consideration of whether other protective measures can be implemented, should not be susceptible to the same kinds of challenges brought by the EEOC to mandatory flu vaccination policies, as COVID-19 presents a higher degree of risk based on widely held scientific data. Moreover, it is logical to assume that the Biden Administration will be less vigorous in advancing potential religious freedoms and accommodations than the Trump Administration, and, in turn, will be less likely to steer the EEOC to advance religious accommodations to the detriment of promoting vaccinations.

Objections to Workplace Safety under OSHA

Without going into exhaustive detail, the OSH Act has a general duty clause that requires all employers to provide workplaces free from known hazards that cause or are likely to cause death or serious physical harm to employees.28  Throughout the current pandemic, OSHA has primarily regulated healthcare employers when their employees have died, potentially due to COVID-19 exposure, or when they have not followed pre-pandemic regulations governing PPE, such as respirators.

Since the inception of the pandemic, OSHA has had a fairly light touch, choosing to initiate litigation against employers only rarely even when faced with numerous employee deaths due to COVID-19 and facially egregious fact patterns;29  instead, it has tended to issue small fines based on violations of technical regulations. That trend is expected to change under President-Elect Biden’s Administration, and all employers can expect more scrutiny in terms of what they have done to prevent the transmission of COVID-19 in the workplace. Such a change in philosophy, if carried out as expected, would favor vaccination policies and potentially help insulate healthcare employers from OSH Act risk if, e.g., one or more employees later died of COVID-19 after the implementation of an appropriate mandatory or consent-based vaccination policy.

With the many expected political and philosophical objections to vaccines, employers, including healthcare employers, likely will face the following scenario: a person opposed to vaccines will object to the taking of the vaccine, citing potential reported hazards in taking the vaccine, and then try to position himself/herself as a whistleblower who has complained of workplace hazards. Whistleblower protection, however, only is triggered when an employee raises a “reasonable” concern about a possible OSH Act violation or engages in other related protected activity.30  As context, during the HIN1 pandemic, OSHA previously issued advisory guidance indicating that it would permit healthcare employers to mandate vaccines, so long as the employers factor reasonable beliefs regarding serious reactions from any vaccine.31

Given that the FDA has made the determinations referenced in Section I supra regarding the risks and benefits associated with the Pfizer and Moderna vaccines, those conclusions should effectively insulate employers and healthcare employers from OSH Act whistleblower risk based on the distribution of authorized vaccines as long as: (1) the risk profile of the vaccines does not materially change from the risks shown in clinical trials; (2) employers ensure that the vaccines are administered in accordance with manufacturer instructions; and (3) employers consider, in good faith, appropriate disability-related accommodations under the ADA. Recognizing that these may be “famous last words,” we do not see OSH Act risk as a significant determinative factor as to whether and what kind of vaccination policy to adopt.

Other Potential Areas of Exposure

For any unionized employees, the implementation of a mandatory (or potentially even a consent-based) vaccination policy could mandate the need to bargain prior to implementation, unless the applicable collective bargaining agreement (“CBA”) has afforded the employer with the unilateral right to impose this term. Therefore, any healthcare employer needs to consult the terms of any CBA and legal counsel regarding the obligation to bargain. It also is possible that mandatory vaccination policies could promote organizing activity and the right to bargain under the National Labor Relations Act as a term and condition of employment. Therefore, healthcare employers should be cautious when attempting to regulate communications among even non-unionized employees regarding vaccines and their risks, efficacy, etc.

Turning to state law concerns, various states have adopted laws addressing the offering of other kinds of vaccines (flu, hepatitis, etc.) by healthcare facilities. Many of those statutes have “outs” permitting employees to decline vaccinations for various reasons or for no reason. It is possible that these statutes may be updated in the near future to address or accept any COVID-19 vaccine from their coverage. In addition to the foregoing and particularly given that the EUA fact sheets disclose that potential vaccine recipients have the right to decline the vaccine, healthcare employers should verify the extent and scope of state law exceptions to the employment “at will” doctrine that create a private right of action. While most public policy exceptions to the “at will” doctrine are very specific and/or are based on engaging in lawful off-duty conduct, we anticipate that the mere presence of the EUA fact sheet language will result in the pursuit of creative wrongful termination claims.

Note that the Georgia legislature has adopted a partial liability shield, with additional protections for mandated postings.32  It still is possible that employees may bring worker’s compensation claims if they become ill following the taking of vaccines mandated or recommended by company policy. Depending on the nature and risk presented by that claim, either the employee, the employer or the employer’s insurer(s) may dispute whether that claim falls within the ambit of the applicable state’s worker’s compensation scheme. While this analysis is beyond the scope of this article, this kind of claim – that the vaccine caused the illness at issue – naturally would raise questions of causation, but logically would be more susceptible to worker’s compensation coverage (and the resulting preclusion of other state law claims) than claims regarding whether employees contracted COVID-19 on the job.

Other Liability Shields: Present and Future(?)

In Congress’ inimitable way, the fight for a broad liability shield for employers and businesses from COVID-19 related risks has been ongoing since before the passage of the CARES Act. Majority Leader McConnell first continued to insist that a broad liability shield be included in any near-term stimulus package and then abandoned the liability shield as part of the requirement the stimulus package passed over the weekend.33  We will continue to monitor any broader liability shield developments as they arise, but we doubt that this concept will have any traction in the next Congress.

Presently, employers, including healthcare employers, may receive immunity from certain claims relating to COVID-19 vaccines under the Public Readiness and Emergency Preparedness Act (“PREP Act”). The PREP Act authorizes the Secretary of HHS (“Secretary”) to issue a declaration providing immunity from liability for claims of loss caused, arising out of, relating to, or resulting from the administration or use of countermeasures to diseases, threats, and conditions determined by the Secretary to constitute a present or credible risk of a future public health emergency.  A PREP Act declaration may provide immunity to entities and individuals – including manufacturers, distributors, and program planners, such as private sector employers – involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures. Immunity from liability under the PREP Act is not available for death or serious physical injury caused by willful misconduct.

Secretary Azar issued a PREP Act declaration regarding countermeasures against COVID-19 in March 2020 (“Declaration”) and several amendments thereto, most recently on December 3, 2020.34  Although a full discussion of the PREP Act is beyond the scope of this article, the Declaration, as amended, seeks to provide broad protection to those involved in the manufacture, distribution, and administration of COVID-19 countermeasures, including any vaccine.  Notably, “administration” of the countermeasures is defined to mean “physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.”  Thus, absent willful misconduct, healthcare employers who choose to require or facilitate the provision of vaccines to employees could qualify for immunity from liability for the administration of the vaccine under the PREP Act. As stated by the Secretary: “[I]t is the Secretary’s interpretation that, when a Declaration is in effect, the Act precludes, for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct. Likewise, the Act precludes a liability claim relating to the management and operation of a countermeasure distribution program or site . . . .”

In order to avail themselves of this protection, healthcare employers must be authorized to administer the vaccine by the public agency (federal, state or local) responsible for distributing or dispensing it. Moreover, employers should administer the vaccines in accordance with any prescribed directions.

Practical Considerations and Closing Thoughts

We expect that the legal landscape specifically addressing the administration of the COVID-19 vaccine will further develop after President-Elect Biden’s Administration takes over and sets policy initiatives relating to the vaccine’s continued roll out and as we learn more about the efficacy and risks associated with each EUA-authorized vaccine. With that said, healthcare employers have leeway to encourage and even mandate that their employees take vaccines as long as they pay attention to a few basic rules: (1) consider which employees are in contact with other employees, patients, residents, and business partners; (2) ensure that vaccines are administered in strict accordance with manufacturer instructions; and (3) adopt mechanisms to evaluate potential disability-related and religious accommodations in good faith and on an individualized basis. We strongly recommend that vaccine administration be accompanied by clear policies setting employee expectations (including the continued use of other protective measures designed to control the spread of COVID-19), disclosing the EUA fact sheets associated with each vaccine-type, and securing knowing consent to the taking of vaccines.

In connection with the decision of whether to encourage versus mandate the taking of vaccines, healthcare employers logically should consider any or all of the following: (1) their ability to administer the accommodations associated with a mandatory vaccination policy; (2) their evolving ability to manage the increasing spread of the COVID-19 virus; (3) whether the spread of the virus is negatively impacting the ability to attract business (e.g., elective procedures, admission of residents to long-term care facilities); (4) the temperament of their workforce and whether a mandatory policy may result in crippling staffing problems or potentially unionization activity; (5) whether they have the stomach to terminate employees who refuse to take vaccines for political or philosophical reasons; and (6) whether contractual and business relationships demand a particular approach. As to the latter factor, we expect that healthcare facilities may attempt to limit persons who are not vaccinated from entering their premises, particularly as vaccines become more available. If that occurs, the need to have vaccinated employees may become immediate and critical. In the same vein, healthcare employers should examine their contractual obligations to determine if various obligations and representations, e.g., regarding compliance with the law and maintaining a safe workplace, are implicated by whether employees who are in contact with others are vaccinated. In this regard, we can envision contractual claims and efforts to terminate contracts in the event that non-vaccinated employees are allowed into facilities and, through contact tracing or other evidence, are revealed to be the source of the spread of COVID-19 to others.

Of course, the decision of whether to adopt a consent-based or mandatory (with outs) approach is not unitary. Healthcare employers could decide to initially take one approach and then revisit that approach based on many of the factors discussed above, as well as the availability of the vaccine at given times. Healthcare employers also could bolster a consent-based approach by offering incentives to encourage employees to take vaccines, understanding that any incentives should be offered across the board and in a non-discriminatory manner. Unless and until the EEOC, OSHA, or another regulatory body issues more definitive and, if applicable, more restrictive guidance, the existing state of law governing vaccines does not preclude healthcare employers from making decisions to strongly encourage or even mandate employees to take vaccines, subject to the considerations discussed above.

Of course, we would be happy to discuss these complex and evolving issues with you, and have template policies and protocols available as a starting point to assist you in the development of your vaccine administration protocols.

If you have any questions, please contact Henry M. Perlowski and Ashley S. Kelly or any other member of AGG’s Employment Law team.

 

[1] https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19.

[2] Id.

[3] https://www.fdanews.com/ext/resources/files/archives/e/Emergency-Use-Authorization.pdf at 15.

[4] Id.

[5] See https://www.fda.gov/media/144414/download at 4.

[6] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (hereinafter, the “EEOC Vaccine Guidance”).

[7] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

[8] 42 U.S.C. § 12112(d). Equal Employment Opportunity Comm’n, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (hereinafter, the “EEOC Pandemic Guidance”), § B of “General Principles” (2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html#4 [hereinafter Inquiries and Exams].

[9] EEOC Informal Discussion Letter (Mar. 5, 2020), available at https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250.

[10] https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020.

[11] EEOC Pandemic Guidance at § A.5 of “Job-Related and Consistent with Business Necessity.”

[12] 29 C.F.R. § 1630.2(r).

[13] EEOC Pandemic Guidance at § B.

[14] EEOC Vaccine Guidance at § K.1.

[15] Id. at § K.2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] 42 U.S.C. § 12111(10); see also 29 C.F.R. § 1630.2(p) (including factors to consider when determining undue hardship); 29 C.F.R. pt. 1630 app. § 1630.2(p) (providing a more detailed analysis and examples of where a requested reasonable accommodation would pose an undue hardship).

[21] 29 C.F.R. § 1630.2(r).

[22] See https://www.npr.org/sections/coronavirus-live-updates/2020/12/15/946761737/poll-americans-are-growing-less-reluctant-to-take-covid-19-vaccine.

[23] 29 C.F.R. § 1605.1.

[24] See Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487, 492 (3d Cir. 2017).

[25] 29 C.F.R. § 1605.1.

[26] See EEOC Press Release, (June 6, 2019), available at https://www.eeoc.gov/newsroom/memorial-healthcare-pay-74418-settle-eeoc-religious-discrimination-lawsuit (recognizing that wearing a mask is an acceptable reasonable accommodation for those with religious objections to flu vaccines).

[27] See id. ($300,000 settlement against a hospital following the termination of employees who sought religious-based exemptions); see EEOC Press Release (Jan. 12, 2018), available at https://www.eeoc.gov/newsroom/mission-hospital-agrees-pay-89000-settle-eeoc-religious-discrimination-lawsuit ($89,000 settlement when a hospital employer mandated that religious exemption requests to mandatory flu vaccines be submitted by a time certain).

[28] 29 U.S.C. 654 § 5(a).

[29] See https://www.natlawreview.com/article/covid-19-whatever-happened-to-osha.

[30] See https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf (see link to “Whistleblower Protection).

[31] https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09.

[32] http://www.legis.ga.gov/Legislation/20192020/195211.pdf.

[33] See https://www.cnbc.com/2020/12/08/coronavirus-stimulus-update-checks-liability-among-relief-disagreements.html.

[34]  The Declaration and Amendments can be found at https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx

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