Can a Dental Practice in Washington Mandate its Employees Receive COVID-19 Vaccinations?

Washington State is an at-will employment state, and neither federal nor Washington State law prohibit an employer from requiring its employees to be immunized, subject to certain exceptions. Therefore, a dental practice in Washington can mandate that its employees receive COVID-19 vaccinations as a condition of employment, subject to certain exceptions.

Mandatory immunizations required by an employer implicate the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), the National Labor Relations Act (“NLRA”), and the Washington State Law Against Discrimination. An employer should proceed carefully when mandating immunizations. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on the application of federal law to mandatory vaccination policies in response to COVID-19 public health emergency and indicated that federal law does not prohibit mandatory COVID-19 immunization. See U.S. Equal Employment Opportunity Commission, What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Dec. 16, 2020), No. K.5, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (“EEOC Guidance”). This guidance addresses the implication of such policies under the ADA and Title VII and should be consulted prior to implementing a mandatory immunization policy for COVID-19.

ADA

Under the ADA, vaccinations generally are considered to be “medical examinations” and, therefore, may only be mandated by an employer if they are “job-related, consistent with business necessity or justified by a direct threat, and no broader or more intrusive than necessary.” 42 U.S.C. § 12101. Thus, mandatory immunizations are typically only required in certain industries such as health care or education. With regard to the COVID-19 vaccine, the EEOC’s guidance states that “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” See EEOC Guidance.

However, an employee must answer pre-screening questions to determine whether the employee can be vaccinated, and these pre-screening questions may elicit disclosure of information that triggers the ADA’s provision prohibiting disability-related inquires. An employer must show that pre-screening questions are “job-related and consistent with business necessity.” Id. To meet this standard, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, thus, does not receive a vaccination, will pose a direct threat to the employee’s own health or safety or that of others. If an employee receives the vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the pre-screening questions posed by the third party do not implicate the ADA. If the employer requires proof that an employee has received a COVID-19 vaccination from a third party, the employee should only provide proof of immunization and no other medical information to avoid implicating the ADA. Id.

If an employee declines a mandated vaccine due to a disability, an employer must determine whether an unvaccinated employee would pose a direct threat due to 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.” 29 C.F.R. § 1630.2(r). If an employer determines that the employee poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but may not automatically terminate the worker. The employer must determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, the employee may be entitled to accommodations such as performing the current position remotely. See EEOC Guidance.

Title VII

Under Title VII, an employer must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, unless it would pose an “undue hardship.” See Title VII of the Civil Rights Act of 1964. EEOC guidance states that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. The employer cannot automatically terminate the employee or exclude the employee from the workplace unless there is no way to provide a reasonable accommodation. Again, the employer must determine if any other rights apply under the EEO laws or other federal, state, and local authorities. See EEOC Guidance.

NLRA

The NLRA protects employees’ rights to engage in concerted activity, for the purpose of collective bargaining or other mutual aid or protection, and mandatory immunization should be considered a mandatory subject of bargaining. See Section 7, National Labor Relations Act. Further, the U.S. Court of Appeals for the 9th Circuit held that a hospital could not mandate employee immunizations because mandatory immunizations should be considered a mandatory subject of bargaining under a collective bargaining agreement that required negotiations for any job requirement that was a condition of employment. See Virginia Mason Hospital v. Washington State Nurses Association, 511 F. 3d 908 (2007). Thus, even if an employer’s employees are not unionized, the employer should exercise care before taking any adverse employment action against employees who engage in protected, concerted activity or who collectively discuss, object to, or protest an employer-mandated immunization because it could lead to an unfair labor practice claim.

Washington State Law Against Discrimination

The Washington Law Against Discrimination prohibits employment practices that discriminate based on an individual’s sensory, mental, or physical disability. RCW 49.60.180. The law covers employers with eight or more employees. The state law also incorporates the ADA requirements that an employer must reasonably accommodate a known disability of a qualified candidate or employee. WAC 357-26-010. Thus, under Washington state law, an employer mandating employee immunizations should address an employee’s disability as it would under the ADA, taking into account Washington’s broad definition of disability.

Proposed Legislation in Washington State

Finally, it is important to note that Senator Doug Ericksen has stated that he is preparing legislation for the 2021 legislative session that would prohibit discrimination based on an individual’s vaccination status. Washington State Republican Caucus, Ericksen bill would protect individual rights amid rush to vaccinate, accessed at https://dougericksen.src.wastateleg.org/ericksen-bill-protect-individual-rights-amid-rush-vaccinate/. Under the proposed bill, vaccination could not be required as a condition of employment. At this time, no additional details of the proposed bill are available.

Conclusion

In conclusion, a dental practice in Washington can mandate that its employees receive COVID-19 vaccinations as a condition of employment, subject to certain exceptions. Prior to mandating COVID-19 immunizations, the employer should implement a COVID-19 vaccination policy that is consistent with its employment policies. If an employee objects to the immunization, citing a disability or religious reason, or engages in protected, concerted activity or collectively objects to the mandated immunization, the employer should consult legal counsel on a case-by-case basis to determine how to proceed.
Lastly, if an employee is employed pursuant to a contract, the employer should consult legal counsel regarding whether the particular contract affects the employer’s right to mandate that the employee receive COVID-19 vaccinations. Employers should also consult legal counsel if they want to institute mandatory COVID-19 vaccinations for their independent contract workers. Similar to regular employees, independent contractors should understand and be required to adhere to the employer's policies and procedures, but their services are typically governed by a written contract and not at-will. These independent contractor agreements will require a separate legal analysis to determine whether their terms require compliance with a mandatory COVID-19 vaccination policy.

This article is solely for educational purposes and is not intended as legal advice or as a substitute for the particularized advice of your own counsel and should not be relied upon as such, as the advice appropriate for you will be dependent upon the particular facts and circumstances of your situation. The transmission or receipt of this information, or the exchange of questions and answers, does not create an attorney-client relationship.

Updated Jan. 7, 2021

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Additional Resources from the American Dental Association

The ADA has created the following FAQs for employers and employees regarding the COVID-19 vaccine.

• COVID-19 Vaccines in the Dental Workplace: FAQs for Practice Owners (ADA)
• COVID-19 Vaccines in the Dental Workplace: FAQs for Employee Dentists (ADA)