Multiple states and jurisdictions are reporting a deadly winter spike of COVID-19 infections. An excess of 220,000 cases of COVID-19 were reported in early December, a dramatic increase from the 44,783 reported in October. Nevertheless, a glint of hope flashes within the gloom of the COVID-19 pandemic: Operation Warp Speed, a partnership program between the public and private sectors to develop, produce, and mass distribute a COVID vaccine. Pfizer's vaccine has a reported effectiveness rate of 82% after the first dose and a 95% rate after the second dose. This, and various other vaccines with similar effectivity rates, are currently in the race for government authorization for mass vaccinations, with Pfizer-BioNTech's and Moderna's vaccines having received Emergency Use Authorization (EUA) from the U.S. Food and Drug Administration (FDA). This "emergency use" authorization stems from the FDA's ability to greenlight unapproved medical products to facilitate healthcare response during public health emergencies. Meanwhile, the Centers for Disease Control and Prevention (CDC) has planned ahead to determine which groups should be the first to be vaccinated.
A vaccine authorized for emergency use must still receive a favorable recommendation from the CDC's Advisory Committee on Immunization Practices (ACIP) before being authorized for mass distribution. The ACIP has established a preemptive phased rollout plan for the initial stages of mass vaccinations. The Puerto Rico Health Department, on its part, has issued its own vaccination program, closely tracking the ACIP rollout. Healthcare personnel and residents of long-term care facilities would be the first people to receive an approved COVID vaccine. Other groups considered for the initial wave of vaccinations are essential workers in critical industries and people with a high-risk of infection due to age or an underlying health condition. As vaccine supplies become more readily available, a broader spectrum of people can lineup to be vaccinated.
Dr. Anthony Fauci, renowned infectious diseases expert and Director of the National Institute of Allergy and Infectious Diseases, said that the COVID-19 pandemic could be under control "towards the second half of 2021 if we implement the vaccine program properly and aggressively."1 CDC documents state it is not specifically known what percentage of the population needs to be vaccinated to reach herd immunity, but Dr. Fauci estimates that it is between 75% and 80%.2 As the prospect of accessible COVID vaccines draws nearer, employers are beginning to consider vaccination policies, their parameters, advantages and associated risk. As such, an old question to a new virus arises: Can I require my employees to vaccinate?
Regardless of whether the federal government can issue a vaccination mandate, such a prospect is highly unlikely. Back in August, Dr. Fauci anticipated the vaccine would not be mandatory in the U.S.3 More recently, on December 5, 2020, President-elect Joe Biden told reporters that he would not make vaccinations mandatory. "I will do everything in my power as president of the United States to encourage people to do the right thing and when they do it demonstrate that it matters," he said.4
In the case of states, the legal precedent for mandatory vaccinations dates back to a 1905 United States Supreme Court case after a smallpox outbreak in Cambridge, Massachusetts, Jacobson v. Massachusetts. Cambridge introduced an ordinance requiring that all adults be vaccinated or revaccinated against smallpox. If they failed to comply, they were required to pay a fine of $5. The plaintiff, Jacobson, a Cambridge resident, objected and filed suit, arguing, among other things, that his constitutionally protected liberty interests were being infringed by the mandate. In upholding the ordinance, the U.S. Supreme Court found that states have the authority to enact reasonable regulations as necessary to protect public health, public safety, and the common good and that vaccine mandates constitute exactly that kind of permissible state action to protect the public's health.
When it comes to the flu, vaccination requirements for healthcare workers and patients in healthcare facilities enacted pursuant to statutory or regulatory state vaccination mandates come in different forms and include the following types of provisions: (a) assessment requirements, where the healthcare facility must assess a healthcare worker or patient's vaccination status; (b) administrative requirements for offering vaccination, where the healthcare facility must offer a vaccination to a healthcare worker or patient; and (c) administrative requirements for ensuring vaccination, where the healthcare facility must require a healthcare worker or patient to demonstrate proof of vaccination or immunity.
According to the CDC, as of February 2018, 24 states have flu vaccination requirements for long-term care facility healthcare workers, 32 have them for long-term care facility patients, 18 states and Puerto Rico have flu vaccination requirements for hospital healthcare workers,16 states for hospital patients, 11 states have them for ambulatory healthcare workers, and 1 state for ambulatory care facility patients.5 It remains to be seen whether, in light of the current COVID-19 pandemic, additional states will join these ranks and mandates will be expanded to include additional categories of workers, employment sectors or at-risk individuals, or stricter mandates. While we can anticipate this will depend on the success of voluntary vaccination campaigns, any such exercise of the state policy power to protect the public health will have a direct impact on employer policies and exemptions to the same.
In the absence of a particular statutory or regulatory mandate, the question remains, what can an employer require in the way of vaccination in order to protect the health and safety of its workers? Let us begin with the American with Disabilities Act (ADA).
Inquiries about employer-mandated vaccination are as seasonal as the flu. The short answer is: "Yes, depending on a number of factors." The ADA, which protects all employees, prohibits an employer from making disability-related medical inquiries or examinations unless such inquiry or examination is "job related and consistent with business necessity." Vaccinations are not considered "medical examinations" under the ADA because they are not a "procedure or test [...] that seeks information about an individual's physical or mental impairments or health."6 Therefore, to require vaccination or proof of receipt of same, in it of itself, is not prohibited by the ADA. The pre-screening medical questionnaire, standard procedure before administering a vaccine, however, may constitute a "disability-oriented inquiry" prohibited by the ADA unless it is "job-related and consistent with business necessity".
The Equal Employment Opportunity Commission (EEOC) recently updated its Technical Assistance Questions and Answers (Q&A) with information regarding COVID-19, the ADA, and other work-related laws to specifically address the topic of COVID-19 vaccines.7 Importantly, the EEOC recognized an employer's right to request the same and discussed two circumstances where medical inquiries prior to vaccination need not satisfy the "job-related" exemption. First, if employer vaccinations are voluntary, then "the ADA requires that the employee's decision to answer pre-screening, disability-related questions also must be voluntary." Second, if the employer vaccinations are compulsory and are administered by "a third party that does not have a contract with the employer" (e.g., a local pharmacy), then ADA restrictions on "disability-related inquiries" would not apply to the pre-vaccination questions-which, presumably, will be conducted by the third party.
For other instances of medical inquiries or examinations, employers must satisfy the "job-related" exemption in order to comply with the ADA. The "job-related" exemption is met when an employer has a reasonable belief that: (a) the medical condition will impair the employee's ability to perform the job required; or (b) the employee's medical condition will pose a direct threat to others. The employer's reasonable belief must be based on the best available evidence and medical information, such as that provided by the CDC. In short, employer-mandated vaccinations are not incompatible with the ADA, but the medical inquiries standard to the process need to meet the "job-related" exemption or fall into one of two above-described scenarios as per the EEOC.
Addressing employee objection or impediment to vaccination
Since issuing its first installment of its COVID-19 Q&A, the EEOC has made plain that EEO laws, like the ADA, continue to apply during pandemic declarations, but, importantly, these laws are not meant to interfere with an employer's following recommendations of the CDC or state health officials.
In addressing the scenario in which an employer requires its employees to get vaccinated, the EEOC discusses how employers should respond to employees that assert a sincere religious objection or medical disability that impedes vaccination. These employees are protected from discrimination both under the ADA and Title VII of the Civil Rights Act of 1964. An employer in this position needs to consider whether the unvaccinated employee would pose a "direct threat" to others using these four factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. Although a global pandemic would seem to satisfy the "direct threat" component, workplace context matters when determining whether or not this element is satisfied.
For example, a farmhand harvesting in an open field would probably not pose a "direct threat to others" as compared to an employee working in a home for the elderly. In sum, a "direct threat" is more evident for employers working in high-risk environments or with high-risk populations. At any rate, even after a "direct threat" determination, "the employer cannot exclude the employee from the workplace-or take any other action-unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat." Importantly, providing a reasonable accommodation includes considering options like leaves of absence, shift changes, and teleworking, among many others.
Regarding the issue of undue hardship, the EEOC expressly states that "the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact [this] consideration." To this effect, employers are advised to rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available. Similarly, the Occupational Safety and Health Administration (OSHA) is expected to release official guidance which, it is hoped, will shed additional light on the subject. While the EEOC recognizes there may be situations where an accommodation is not possible, it warns against automatic termination decisions. As always, the facts about job duties and workplaces are relevant. Employers are counseled to tread carefully when considering this possibility as its legality will largely depend on the particular context and circumstances of the workplace and the employee's role within the same.
Puerto Rico Constitutional Considerations
Among the rights and civil liberties safeguarded by Puerto Rico's Bill of Rights, one reigns supreme above others: the right to privacy. Sections 1, 8, and 16 of Article II of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico consecrates the right to privacy, the inviolability of the human dignity, and the right to be protected against risks to the integrity of the person in his work. The Supreme Court of Puerto Rico has recognized that, inherent in these protections, is the right of the individual to make decisions about their own medical treatment, including the right to consent or refuse medical treatment. Importantly, and particularly relevant to the employment context and the issue of vaccines, is the individual's right to protection against risks to his health or person in his work or employment, also included in Article II, section 16.8
The right to privacy has been held enforceable between private parties ex proprio vigore; that is, without the need for enabling legislation. In Arroyo v. Rattan Specialties, the Puerto Rico Supreme Court held that, in the employment context, this means that an employee candidate or active employee may sue a private employer for damages violating their right to privacy.
Arroyo dealt with an employer that required employees to subject themselves to periodic or specific polygraph tests as a means of protecting against theft and ensuring that they received truthful information regarding the employees' activities in the workplace. In evaluating the constitutional question, the Puerto Rico Supreme Court looked closely at how the polygraph worked, ultimately concluding that it was unreliable. Further, it noted the fact that many states had legislation banning the use of the polygraph in the labor-management context.
Having set the stage, it explained that "[d]espite the fact that technological and scientific advancements, when correctly used, may be of great benefit to society, we cannot forget that they are susceptible to misuse and to become instruments to enslave man and to undermine the human being's most precious things in life: dignity, integrity, and privacy." The Court, thus, set out to "lay down the rules for the adequate use of scientific and technological developments in such a way that they help us confront the difficult problems of modern society" and warned against "letting the anxiety to find quick and easy solutions make us lose sight of the need to protect and preserve man's most essential values." To this end, the Puerto Rico Supreme Court held that in evaluating a claim for violation of privacy in the employment context, courts must weigh the employee's constitutional right to privacy against the constitutional right of employers to protect their property. It concluded that "[a]bsent special circumstances constituting a compelling state interest, our society demands that we tip the balance in favor of protecting the worker's right of privacy, the inviolability of [the employee's] dignity, and his right to be protected against risks to his integrity in his work, vis-a-vis the employer's right to enjoy his private property." It therefore held that "encroachment upon man's privacy can only be tolerated [(1)] in the absence of less drastic means for protecting compelling State interests, and, even in that case, [(2)] only in the presence of adequate guarantees that assure that such invasion is limited to what is strictly necessary." Ultimately, it found the facts of Arroyo did not present any special circumstances representing a real threat to national security or a grave risk to society, or any other compelling state interest justifying the restriction of such an important and fundamental right.
On the other hand, in Vega-Rodríguez v. Teléfonica de Puerto Rico, the Puerto Rico Supreme Court held that electronic surveillance systems, such as video cameras and closed-circuit monitoring, are legitimate methods for protecting an employer's property. Even after recognizing that employees have an enforceable constitutional right to privacy against employers, the Court ruled that electronic surveillance is not automatically unconstitutional, nor is it intrinsically a violation of an employee's privacy. Engaging in its balancing of rights approach, the Supreme Court established basic rules that employers must meet in order to implement constitutionally valid electronic surveillance systems. In addition, the Court expressly prohibited, as a general rule, the use of video recording in those areas where employees have a high expectation of privacy, such as bathrooms, showers, dressing rooms, or locker rooms. Moreover, the Court emphasized that an employer cannot implement a surveillance system without giving advance notice to its employees about said implementation.
Applying these holdings and principles to the vaccination context, in is important to bear in mind that, as per the U.S. Supreme Court holding in Jacobson discussed above, the state interest in protecting the health, safety and common good of citizens in the context of a global pandemic can be reasonably understood as presenting a much different factual scenario than the one addressed in Arroyo, and even Vega, and which certainly weighs more heavily in favor of allowing mandatory vaccines. Likewise, it would seem that the reservations the Puerto Rico Supreme Court expressed with respect to the reliability of the polygraph as an adequate mechanism for addressing the articulated employer interest are not present in the case of a vaccine that the FDA has approved for emergency use.9 More importantly, both in Lozada-Tirado v. Tirado-Flecha, in which the Puerto Rico Supreme Court addressed unconstitutional limitations on an individual's right to refuse medical treatment, and in Vega-Rodriguez, where it considered an employer's installation of security cameras, the Court recognized that said right "is not absolute and may be limited in the presence of certain state interests." Thus, in evaluating restrictions on an individual's right to refuse medical treatment, the Court explained that due consideration must be given to the State's interest in protecting innocent third parties, including, "the State's interest in having citizens submit to a certain medical treatment during a public health crisis." This becomes particularly relevant to the employment context since the right of citizens to be protected against risks to their health in their places of employment shares the same level of constitutional protection that does the right to privacy. Hence, unlike in Arroyo and Vega-Rodríguez, the issue with mandating vaccines is not limited to the employer's interest in protecting its business, but also relates to their employees' right to a safe workplace, particularly during a large-scale, global health crisis such as the one currently underway.
Having satisfied the compelling interest requirement, the next step in evaluating the constitutional question posed by employer-mandated vaccines, is looking at whether there are less drastic means of advancing said interest and establishing adequate guarantees that assure that the privacy invasion is limited to what is strictly necessary. Again, this analysis closely tracks the ADA's "job relatedness" and "business necessity" analysis and, further, the obligation to provide reasonable accommodation in appropriate circumstances.
Evidently, from a privacy standpoint, the compelling interest that may allow an employer to require an employee to vaccinate and effectively interfere with their right to make medical choices, will be greater in employment sectors where employees are at greater risk of contracting COVID-19 or who work with high-risk populations. This, however, does not mean other kinds of employers will be unable to institute such a requirement. Ultimately, when considering mandatory vaccination policies, and the possibility of conditioning employment upon the same, employers in Puerto Rico should first evaluate their workforce and the particular job responsibilities at issue to determine whether there are less drastic means of protecting the compelling interest in the health and safety of employees and ensure they establish mechanisms for addressing the need for exceptions-including religious and medical.
In sum, employers may legally adopt mandatory vaccination programs, but it will depend on the particular workplace context, especially if the program will condition employment on vaccination. Ultimately, this will require an individualized, case-by-case assessment of the specific circumstances of the workplace, employee functions and the availability and efficacy of less-intrusive measures considering the same. Moreover, at least for now, and in the absence of a contrary statutory or regulatory mandate, there must be room for reasonable accommodation of religious and health reasons that impede vaccination. As in the case of current state mandates requiring the regular flu vaccine, this possibility seems more clear-cut in the case of hospital and long-term care healthcare workers. The more removed from work environments where there is a high risk of exposure or contact with high-risk populations, the more tenuous the job-relatedness, business necessity and compelling interest analyses become.
It is important to note that the issue of how far employers can go in requiring their employees to vaccinate against COVID-19 and conditioning employment upon the same is, at the time of publication of this article, in a very fluid stage and will continue to be for the next couple of months, at least. At this time, we do not anticipate a state mandate, but this too may change depending on the response to voluntary vaccination campaign as Puerto Rico strives to achieve herd immunity.
Regardless of whether employers can mandate vaccines in certain circumstances, employers are well advised to consider whether they should implement such mandatory programs. Issues of employee morale and possible liability exposure may counsel towards an approach that does not put employers in the position of having to play defense in a "vaccine war." Protecting the health and welfare in sectors or categories that may not meet the "job relatedness," "business necessity" or "compelling interest" analyses, and even in the case of those that do, may be achieved through voluntary or optional programs that encourage, but do not force, vaccination. Incentives can run the gamut and be as simple as recognizing people who vaccinate with a pin or similar token, to providing an allotment of paid time during the workday for the employee to vaccinate at a nearby clinic or can go as far as bringing the clinic to the workplace (similar to flu shot and blood drives).
Ultimately, employers eyeing vaccination programs, whether mandatory or voluntary, should consult with counsel as there are significant considerations. Specifically, employers should consider the need to adopt workplace policies that consider, among others, the wage and hour implications of the time devoted by non-exempt employees getting vaccinated and workers' compensation repercussions of side effects resulting from the vaccination. Furthermore, in unionized workplaces, employers need to assess their obligations under their respective collective bargaining agreements and their potential obligation to negotiate prior to establishing a vaccination program.
1 Brakkton Booker, Fauci Predicts U.S. Could See Signs Of Herd Immunity By Late March Or Early April, NPR (Dec. 15, 2020).
2 Eileen Drage O'Reilly, The hurdles we face before reaching herd immunity, Axios (Dec. 10, 2020).
3 Amanda Watts, Fauci does not foresee a Covid-19 vaccine mandate in the United States, CNN (Aug. 18, 2020).
4 Joe Biden: Covid vaccination in US will not be mandatory, BBC News (Dec. 5, 2020).
5 CDC, Vaccination Laws, https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.html
6 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, EEOC (Dec. 16, 2020), https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#1
7 For more information see Littler's recently published overview of the new EEOC update.
8 In furtherance of this constitutional mandate, the Island's legislature enacted the Puerto Rico Occupational Safety and Health Act (PROSHA), P.R. Laws Ann. tit. 29, §§ 361 et seq., to guarantee safe and healthy working conditions for all employees of the Island. In general, PROSHA requires employers to provide a place of employment free from recognized hazards that cause or may cause death or serious physical harm to its employees. This includes providing safety devices, safeguards, and personal protection equipment, as required by the Secretary, or as reasonably necessary, without any cost to employees.
9 We note that the Food, Drug and Cosmetic Act which regulates the authorization of medical products for use in emergency situations (EUAs), requires that the person to whom the product is to be administered be informed of "the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks." See 21 U.S.C. § 360bbb-3(e)(A)(ii)(III) (hyperlink https://www.law.cornell.edu/uscode/text/21/360bbb-3). Although we are not aware of any case law interpreting this legal provision, both Pfizer-BioNTech's COVID-19 Vaccine EUA Letter of Authorization (hyperlink https://www.fda.gov/media/144412/download) and Moderna's (hyperlink https://www.fda.gov/media/144636/download) authorizations make reference, among its materials to the recipients "option to accept or refuse" the vaccine. Specifically, the FDA required Fact Sheet to be distributed to Recipients and Caregivers provides that "[i]t is your choice to receive or not receive the . . . Vaccine". https://www.fda.gov/media/144414/download
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