FAQs Regarding Employer COVID-19 Mandatory Vaccination Policies


During our recent webinar, COVID-19: Critical Fall Planning and Management Issues for Employers, we covered the increasing prevalence of mandatory vaccination programs and discussed critical issues related to the implementation of such policies. The day after the webinar, President Biden announced a surprisingly sweeping, six-pronged national strategy to combat COVID-19—including requiring many employers to implement mandatory vaccination programs.

This FAQ update is designed to provide insights to employers navigating their own COVID-19 vaccination policies and/or considering mandating employee vaccinations, including in the wake of President Biden’s announcement. Questions from webinar participants have been added to our own list of relevant and frequently asked questions and answers.

Q. Do I have to approve all medical-based requests for exemptions from a mandatory vaccine policy?

A. No. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations only to employees who cannot receive the COVID-19 vaccine because of a “disability,” so long as the accommodation does not constitute an undue hardship. Because not all medical conditions asserted as precluding vaccination constitute “disabilities” under the ADA, not all such conditions need to be accommodated. Exemption requests based on vague and general conditions (e.g. “allergic reaction to other vaccines”) need not be granted; but, employers should consider referring the requesting employee to their normal ADA process if the employee wishes to further pursue the request. As with other accommodation requests, determining whether a medical condition is a disability under the ADA is an important, often sensitive analysis generally requiring individualized inquiry. In close cases, consider consulting with counsel before determining if it is appropriate to approve or deny medical-based vaccine exemption requests.

Q: Can an organization impose a mandatory vaccination policy for independent contractors and/or volunteers, and, if so, is the organization obligated to offer religious and medical exemptions?

A. With respect to independent contractors who have not yet been engaged, organizations may require vaccinations as a condition of engagement as long as the contract governing the relationship incorporates such a requirement. On the other hand, an organization that is looking to impose a vaccination requirement on an existing independent contractor will likely be limited by the terms of the independent contractor agreement. In most instances, the existing contract likely does not contain a mandatory vaccination policy or other language (e.g. “Contractor agrees to adhere to all health and safety requirements”) and may therefore limit the company’s ability to impose such a policy without an amendment to the contract.

As far as religious and medical exemptions are concerned, an organization’s obligation to accommodate properly classified independent contractors will depend on the jurisdiction in which the issue arises. Generally speaking, properly classified independent contractors are not considered “employees” under Title VII of the Civil Rights Act of 1964 (“Title VII”) or the ADA; therefore, an organization is not obligated to offer religious or medical exemptions. However, some states and localities have expanded their definitions of “employee” in their anti-discrimination laws to include independent contractors, or enacted separate anti-discrimination statute specifically covering independent contractors. Organizations looking to enforce a mandatory vaccination policy for its independent contractors should first confirm whether their state or locality requires accommodations for such individuals.

Similar to independent contractors, volunteers are not considered “employees” under Title VII or the ADA. However, organizations should check that all volunteers are properly classified as such, otherwise a duty to accommodate a volunteer may be required. For example, if a “volunteer” receives significant remunerations (e.g., health benefits, stipends, or workers’ compensation coverage, etc.) or if volunteer work is a prerequisite for employment, then the individual is more akin to an employee and may be viewed as such under Title VII and the ADA’s accommodation requirements. Consideration of the organizations mission, donor and community relations, and similar factors also may be relevant in determining whether to provide exemptions to volunteers.

Q. In a unionized company, does the vaccine mandate require approval from the union?

A. Yes, in most instances. In general, unions act as representatives of employees, and their purpose is to give employees the power to bargain with employers on certain “mandatory subjects of bargaining.” Mandatory subjects of bargaining include policies that directly impact terms and conditions of employment. It is most likely that a vaccine mandate would be considered a mandatory subject of bargaining. As a result, unless the company can point to some language in the collective bargaining agreement (“CBA”) already providing employers the right to implement a vaccine mandate, or a very clear past practice, they will likely need to bargain with the union over that decision.

Even if the CBA does have language that appears to grant the employer the ability to implement a vaccine mandate without consulting the union, employers would likely need to bargain with the union over the details of implementation. For example, details such as handling employees who have vaccine side effects, exemptions to the policy, potentially moving employees to other positions because of social distancing requirements, and others, would need to be bargained.

The collective bargaining obligation and historical dynamic between management and the union is unique to each workplace. Employers should consult their local Quarles & Brady attorney before attempting to implement a mandatory vaccine policy in a union company.

Q. What are the potential risks and benefits of requiring only new hires to be fully vaccinated, but not current employees?

A. Employers may indeed mandate vaccination for new hires but not for current employees—recognizing that doing so may have positive and/or negative effects. With respect to potential positive effects, this type of policy may attract job seekers whose values align with those of the organization. Such individuals may constitute a majority of current job seekers, as a recent survey suggests that a majority of the American workforce favors vaccine mandates. Additionally, adding vaccinated employees to any work environment increases its overall COVID-related safety, which will ultimately aid employers in the return-to-work process.

In terms of potential negative effects, this arrangement may dissuade qualified candidates who oppose vaccination from applying for available positions. Such a policy may also impact the morale of current employees, including causing them to doubt the sincerity of their employer’s efforts to ensure a safe work environment and prioritize vaccinating employees. Additionally, employers may have difficulty handling disability-related vaccination exemption requests from new hires who hold the same position as any incumbent employee, pursuant to the ADA’s “direct threat” analysis—which is tied to the nature of the particular position. This same difficulty may also appear in handling religious-based exemption requests, which often hinge on whether the requested accommodation will present an “undue hardship” under Title VII—an analysis that is likewise tied to the nature of the job. To discuss the potential risks and benefits of requiring only new hires to be fully vaccinated, and how such an arrangement might affect your workplace, consult with counsel.

Q. How should an employer respond to employee requests to “guarantee” insurance coverage (or acknowledgement of liability) for adverse reactions to the vaccine, including (i) immediate or future disability claims, and (ii) payment of company life insurance in the event of death?

A. Employers should not respond to these types of requests. If the vaccine is required for the job, worker’s compensation will likely cover any illness or injury an employee experiences from an adverse reaction, since the vaccine-related illness or injury arose out of or in the course of employment. Additionally, OSHA’s Emergency Temporary Standard (“ETS”), which is expected to be released in the coming weeks, may release employers with 100 or more employees from some or all liability for any adverse vaccine reactions, as these employers will be required to mandate the employee vaccinations.

To further discuss issues related to mandatory vaccination programs, protocols, and return-to-work issues, contact your local Quarles & Brady attorney or:

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