One question our law firm has been asked more frequently during these difficult times is whether an employer can legally require their employees to take a vaccine—specifically one of the COVID-19 vaccines recently approved. As of this writing, Illinois has not enacted any law addressing mandatory COVID-19 vaccinations, while federal guidance regarding the pandemic has seemed to change almost daily. This has left employers to develop their own policies based on their interpretation of existing law and published guidance from agencies like the Equal Employment Opportunity Commission (EEOC). 

Illinois Law & Regulations
In 2018, as part of its efforts to combat influenza, the Illinois Department of Public Health (IDPH) used its emergency rulemaking powers to modify the instances under which a healthcare employee could decline an offer from their healthcare provider employer to be vaccinated for influenza. At that time, under the Influenza Vaccination Program, the IDPH was able to require licensed hospitals and healthcare facilities in the State of Illinois to offer the influenza vaccine to their employees. The rules it issued limited employees’ ability to decline the vaccination to the following exemptions: 

• If the vaccine is medically contraindicated (meaning that administration of the vaccine would likely be detrimental to the employee’s health); 
• If vaccination was contrary to the employee’s religious beliefs; or
• If the employee has already been vaccinated.

Federal Law: The ADA and Civil Rights Act
In accordance with the Americans with Disabilities Act (ADA), in 2009 the EEOC issued guidance on the use of vaccinations in response to the H1N1 outbreak entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” Throughout 2020, the EEOC has continually updated different sections of that publication to address the current COVID-19 pandemic. 

Recently, on December 16, 2020, the EEOC updated its guidance on the use of vaccinations. The updated guidance now provides that an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 may make COVID-19 vaccinations a condition of employment, but the employer must be prepared to make exceptions if: (1) the employee has an ADA disability preventing him or her from taking the COVID-19 vaccine, or (2) the employee has a sincerely held religious belief, practice or observance which prevents him or her from being vaccinated. An employer is covered by both the ADA and Title VII if it has 15 or more employees. 

The EEOC’s guidance also states that while administration of the vaccination itself is not a “medical examination,” any pre-screening vaccination questions are likely to elicit information about the existence of a disability (akin to a medical examination). Therefore, if an employer requires its employees to be vaccinated, and the vaccine is going to be administered by the employer (or a contractor hired by the employer), the employer must demonstrate that any disability-related screening questions asked of employees are “job-related and consistent with business necessity.” 

To meet this standard, the employer must have objective evidence to support a reasonable belief that an employee who does not receive a vaccination will pose a direct threat to the health or safety of himself/herself and others. This requires the employer to conduct an individualized assessment of four factors to determine whether a direct threat exists, including the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of the potential harm. To the extent that any employee medical information is obtained in the course of a vaccination program, the employer must keep that information confidential. One way to avoid the restrictions on pre-vaccination, disability-related inquiries would be for the employer to require that its employees be vaccinated by a third-party provider (such as a pharmacy or healthcare provider) that does not have a contract with the employer.

Employers should also keep in mind that when an employee is unable to be vaccinated due to disability or religious belief, the employer may not automatically exclude the employee from the workplace or take any other actions, including termination of employment, unless there is no reasonable accommodation which could be made for the employee. In such situations, the employer and employee must engage in an interactive process to identify whether any reasonable accommodations exist which would not create an undue hardship for the employer. Possible accommodations could be allowing the employee to work from home, or even take a period of leave under the Families First Coronavirus Response Act, the FMLA or any applicable employer policies.

Conclusion
While potential disability-related and religious accommodations are two issues employers must consider in determining whether to impose a vaccination mandate, there are other considerations as well: 

• Is your workforce unionized, and if so, what are the requirements regarding bargaining over mandatory vaccinations or disciplining an employee for refusing a vaccination? 
• What type of work is the employer engaged in, and what are the hazards of both requiring or not requiring the vaccination of your employees in the relevant industry? 
• What are the employer’s duties with respect to both COVID-19 and vaccinations under the OSHA “general duty” clause to provide a safe workplace free from known hazards? 
• If an employee is harmed or injured by the vaccine, does that trigger a worker’s compensation claim? 
• Is the employer liable under a negligence theory if mandatory vaccinations are not required and an employee contracts the virus? 

With all of the uncertainty and complexity of the current pandemic, it is paramount that an employer seeking to require all of its employees to be vaccinated against the COVID-19 virus first speaks to an experienced employment attorney. PM