Pregnant women fearful or uncertain about Covid-19 vaccinations could be forced to choose whether to obey mandatory return-to-work orders as more businesses seek a return to pre-pandemic normalcy.
Employers are faced with weighing the health concerns of those expecting mothers and navigating requests to be exempt from mandatory vaccinations aimed at protecting the workforce. The issue is likely to become more pressing as companies as well as state and city governments such as South Carolina and New York City require employees to return.
The Centers for Disease Control and Prevention has now deemed the vaccines safe during late-term pregnancy, which is likely to further increase pressure on women.
“We are at a time right now where employers are assessing whether they should mandate or strongly encourage vaccines,” said Lindsay Ryan, a principal at Polsinelli, who represents employers. “Pregnancy specifically is a complex analysis.”
She said employers can certainly direct employees to CDC guidance, but shouldn’t be making any medical judgments.
At least two women, a New York waitress and a Pennsylvania nurse, have told media outlets they were fired for refusing to take the vaccine due to health concerns for pregnancies. Meanwhile, at least one major law firm is requiring a vaccination of its returning employees.
On April 23, Rochelle Walensky, director of the Centers for Disease Control and Prevention, suggested pregnant workers get the vaccine after months of stopping short of recommending the shot. She said there were no safety concerns for women who are vaccinated in their third trimester.
“We know that this is a deeply personal decision, and I encourage people to talk to their doctors or primary care providers to determine what is best for them and for their baby,” she said at a White House briefing.
Not Clear Cut
Pregnancy, unlike a disability or religious objection, doesn’t necessarily merit a guaranteed accommodation from an employer under the Americans with Disabilities Act, though disabilities connected to pregnancy could, including complications such as gestational diabetes or anemia.
Ryan said even if there aren’t disability protections, employers still must be concerned about potential negligence if the vaccine is mandated and then the worker becomes ill. She said there could be liability concerns if a worker gets sick because of a vaccine mandate.
“It’s not necessarily clear cut on whether an accommodation needs to be granted to a pregnant individual,” she said.
Still, pregnancy discrimination is a concern as well, attorneys said. If an employer grants a job accommodation to a person with a disability, a pregnant worker with similar issues could argue in court that they should receive the same consideration.
Amid the pandemic, many pregnant workers filed lawsuits claiming they faced an impossible decision if their employers refused to grant accommodations, such as remote work options, that could protect them from exposure to the virus. Bloomberg Law found that the number of pregnancy bias claims filed jumped 19% in 2020 from the previous year, and 67% from 2016.
Health or Job
Pregnant women were excluded from the initial trials of Covid-19 vaccines, which means data on that segment of the population was lacking, said Dr. Halley Crissman, a gynecologist in Michigan and fellow with Physicians for Reproductive Health.
The CDC has stressed that taking the vaccine should be a personal choice, but updated guidance on April 23 said studies that showed women who took the vaccine when pregnant didn’t have worse outcomes than non-pregnant people.
“Although the overall risk of severe illness is low, pregnant people are at an increased risk for severe illness from COVID-19 when compared to non-pregnant people,” the agency said in its latest guidance.
Crissman, who is currently pregnant, said she was faced with the decision whether to take the vaccine and accept the potential risks. For low-income people in particular, it could create a dangerous situation where workers risk their jobs if they refuse to take the vaccine.
“Back in December, I made the personal decision that my risk of Covid through exposure on the job was more than the risk of the vaccine, and that the known risks of Covid in pregnancy outweighed the low and theoretical risks of the vaccine,” Crissman said. “Each day we gain more information about vaccine safety and pregnancy. However, pregnant people who are not comfortable using the vaccine in light of the lack of longterm data should not be forced to do so.”
Crissman said the debate over accommodation for the vaccine should highlight a broader need for employers to accommodate pregnant women and not force them to make any decisions between their health and their jobs.
Congress is considering a measure that would add protections for workers who notify employers about specific limitations involving pregnancies, childbirths, and related conditions for purposes of requesting an accommodation.
The law doesn’t specifically mention Covid-19 vaccines, but an accommodation could include giving a pregnant worker an exception to a mandatory vaccine, by possibly providing her with the opportunity to continue to remotely work or social distance on the job.
The issues with pregnancy, by its nature, are almost always short term, said Condon McGlothlen, a Seyfarth Shaw LLP partner in Chicago, who represents employers.
“It won’t open the floodgates to other requests,” McGlothlen said. He recommended scheduling and accommodating workers on an individual basis. “It’s that sort of flexibility that we are seeing clients adapt to. I would even say they embrace it.”
If pregnant workers are already working from home, for example, extending that accommodation for a few more months shouldn’t be a burden, he said.
“I don’t recommend anyone require people to be vaccinated if they are already working from home,” said Anthony George, a partner in the Denver office of Bryan Cave Leighton Paisner LLP. “My recommendation is to treat pregnancy the same as any disability, and go through an interactive process.”
Essential workers may have been asked to work before vaccines were available and that could weaken arguments that they should be required to take a shot, he said.
George said it will be difficult for frontline workers to have accommodations that both avoid the exposure and allow unvaccinated employees to work. He predicted it will be a source of litigation in the future, as more companies move back to normalcy.
The interactive process required under the ADA will be key when these decision are made, said Kevin Troutman, co-chair of Fisher Phillips LLP’s healthcare practice, who advises employers. The law takes each disability request on an individual basis, allowing the employer to weigh the accommodation with business necessity.
Troutman said employers are dealing with this situation, and despite the CDC guidance, he would still advise a business to follow a doctor’s recommendation not to take the vaccine for a pregnant worker.
“Pregnancy is not a reason alone to decline the vaccination, but I would still look at the situation on an individual basis,” he said. “I would advise respecting the advice of the doctor and the preference of the employee. Pregnancy is not a long-term situation anyway, so I would not force anyone to do anything they feel is a risk.”