FOLLOW-UP: Employer-Mandated Vaccines – Legal?

On December 16, 2020, the EEOC issued updated guidance on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).

The high-level takeaways from the guidance are:

  1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below);
  2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence.
  3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary.
  4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee.

An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.

Employer-Mandated Vaccines – Legal?

As we anxiously await the roll-out of the COVID-19 vaccine, employers are undoubtedly wondering if they can or should make the vaccine mandatory.  Currently, there is no law banning such a mandate.  However, if an employer puts such a mandate in place, it must consider making exceptions in compliance with Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA).  Note:  Title VII and the ADA only apply to employers with 15 or more employees.

Specifically, employees who object to a vaccine based on a sincerely held religious belief may be entitled to an exemption under Title VII.  Likewise, an employee may be entitled to an exemption based on an ADA disability that prevents the employee from taking the vaccine.  An employer can deny an employee’s religious or medical exemption request if the employer can prove the exemption would impose an undue hardship on the employer or pose a direct threat to the health and safety of others.  Determining whether an undue hardship or direct threat exists is a very fact-intensive, case-by-case inquiry.  Health care providers, first responders, schools, nursing homes and other business that service high risk populations or work in high risk environments will likely pass the undue hardship/direct threat test.

Because of the potential legal complications with mandating a vaccine, employers may opt instead to establish a policy aimed at encouraging, rather than mandating, employees to get vaccinated.  The encouragement can take the form of setting up free on-site vaccination clinics and/or offering incentives to employees who get vaccinated.  See CDC guidance on Promoting Vaccination in the Workplace.


Arizona Legalizes Recreational Marijuana – What that Means for Employers

Arizona voters decisively voted in favor of Proposition 207, which legalizes limited recreational use, possession, and growth of marijuana for individuals age 21 or older.   The law will go into effect on or before April 2021.

This new law should not be confused with the Arizona Medical Marijuana Act (AMMA), which prohibits employers from discriminating against employees/applicants in non-safety sensitive roles who test positive for marijuana if they have a valid medical marijuana card.  Prop. 207 provides no such employment protections for recreational marijuana users.  In fact, the Proposition expressly states that it does not:

  • restrict the rights of an employer to maintain a drug-and-alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees;
  • require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment; or
  • restrict the rights of employers to prohibit or regulate conduct otherwise allowed by the new Act when such conduct occurs on or in their properties.

So, what does the passage of Prop. 207 mean for employers?  Not much.  An employer can still enforce its substance abuse policy against recreational marijuana users.  To make this point clear, employers should consider amending their policy to specify that the legalization of recreational marijuana use does not excuse a violation of the policy.

The CDC has Expanded COVID-19 Close Contact Definition

The CDC released new guidance (updated guidance) on Wednesday regarding what counts as “close contact” with someone who has COVID-19. The expanded definition includes “someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” Previously, the CDC defined close contact as spending 15 consecutive minutes or more within 6 feet of someone with COVID-19. Note: Maricopa County Department of Health defines close contact as within 6 feet for longer than 10 minutes.

This expanded definition means employers will have to adjust their close contact tracing protocol and revise any published written material that adopted the CDC’s previous definition.

Evolving COVID-19 Workplace Guidance

COVID-19 is creating unprecedented challenges for employers that are struggling to keep their businesses afloat while protecting the health and safety of their employees.  Staying abreast of the flurry of evolving pandemic paid leave laws and guidance issued by federal, state and local public health authorities can be daunting.  Over the last few months, we have provided updates to assist your organization navigate its legal obligations and will continue to do so.

This update summarizes recent guidance from the U.S. Department of Labor (DOL) on the application of the Families First Coronavirus Response Act (FFCRA) paid leave benefits to employees who miss work to care for children who are remote learning; DOL guidance on how to properly track work hours for teleworking employees; and requirements for AZ businesses that have returned employees to the workplace.

DOL Issues Guidance re Application of FFCRA Paid Leave Benefits to Remote Learning Situations

The FFCRA entitles employees to take up to 12 weeks of paid time off to care for a child due to school closure.  The DOL clarified that, for FFCRA purposes, a school closure applies when a school is physically closed, but is providing remote instruction to an employee’s child.  An employee is eligible for FFCRA paid leave benefits in this situation if the employee is needed to care for the child during the remote learning time.  However, FFCRA benefits are not available in situations when the child’s school offers students the option of live or remote learning and the employee chooses to keep his/her child home out of a fear the child may contract COVID-19.

DOL Issues Guidance re Employer’s Obligations to Track Teleworking Employees’ Hours of Work

Before the pandemic, some businesses offered employees teleworking as a discretionary and occasional benefit. Post-pandemic, teleworking has become the norm for most business, and likely will continue even after the pandemic subsides.  Therefore, it is important that employers set expectations with employees about the teleworking arrangement, preferably in a detailed teleworking agreement.  One topic that should be addressed is proper time-keeping procedures for non-exempt (hourly) employees to minimize the risk of a claim that the employee was not compensated for all hours worked.  The DOL has provided guidance on this topic.  This guidance reminds employers that, under existing federal law, employers must pay employees for all hours worked, whether performed in the office or away from the office.  Employers must count the time as hours worked if the employer knows or has reason to believe that the work is being performed, even if they did not authorize the work be done.  When employees telework, it becomes even more difficult for employers to keep tabs on employee work time.  According to the DOL,   employers can defeat a claim that they knew or should have known an employee was working “off the clock” by implementing a simple, user-friendly process for employees to report their scheduled and unscheduled work time and make it clear that employees will be compensated for all hours worked, even unscheduled hours.  According to the DOL, “if an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours.”

COVID-19 Guidance for AZ Businesses

As more and more businesses transition employees back to the workplace, it is advisable to refer to the Maricopa County Guidance for Businesses (attached) and the AZ Dep’t of Health’s (AZDH) list of “Requirements” (attached) for recommendations/directives on how to maintain a healthy workplace.  Pima County Health Standards for businesses can be found here (  The directives include:

  • Policies – Develop and implement policies that adopt guidance from the CDC and other public health authorities to mitigate the spread of COVID-19.
  • Social Distancing and Masks:  Implement and enforce physical distancing requirement of at least 6 feet between employees and/or customers.  For businesses where social distancing is not possible, masks are required.   Staff working in public places (such as public transit, restaurants and stores) must wear masks at all times.
  • Symptom Monitoring – The AZDH requires (and Maricopa County encourages) employers to implement symptom monitoring practices for all employees prior to the start of their shift that should include, when “possible,” temperature checks.
  • Quarantining – Require employees who tested positive for the virus or have COVID-19 symptoms to stay home and not return until they have met return to work criteria established by public health authorities.  Exceptions exist for employees deemed essential workers.
  • COVID-19 Testing – According to the County, “employers should NOT require a COVID-19 test result or a health care provider’s note for employees who are sick to validate their illness, to qualify for sick leave, or to return to work.”  The AZDH issued the same prohibition on testing, but gives employers the discretion to request a doctor note from an employee as a condition of returning to work.  Due to this conflicting guidance, you should consult with counsel before mandating a negative test result before an employee can return to work.

Please contact us if you need assistance implementing these requirements.