Posted In: Labor & Employment
Labor & Employment Blog: COVID-19 Vaccinations - To Mandate or Not to Mandate? That Is the Question.
on August 10, 2021
On the minds of many employers right now is whether or not they can mandate COVID-19 vaccinations in the workplace. The short answer is “yes.” However, it is not as simple as it may seem and employers who do mandate vaccinations should know where they may expect pushback, challenges, and issues.
As an initial matter, vaccination policies are not new. Pre-pandemic, employers have always had to establish that a vaccination was “job related and consistent with business necessity.” The COVID-19 pandemic has changed the landscape in that the “job-related and consistent with business necessity” has opened the door for businesses disrupted by the pandemic to now have concerns about ongoing pandemic-related disruptions to their day-to-day operations. As a result, many businesses now want to make COVID-19 vaccination mandatory.
Recently, the Equal Employment Opportunity Commission (“EEOC”) issued guidance and stated that the law does not prevent an employer from requiring all employees physically entering the workplace to be vaccinated from COVID-19. However, it noted that the law may require an employer to provide a “reasonable accommodation” for employees who, because of a disability or sincerely held religious practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.1
What does this mean? In a nutshell, the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) may allow some employees to claim an exemption under a mandatory vaccination policy if they have a disability or a religious objection to vaccination.
Accommodations under the ADA are generally straightforward. For example, an employee may be allergic to one of the ingredients in the shot or may have had a previous reaction to a vaccination that renders him or her unable to get it. Or an employee may have a health condition (such as being immunocompromised) that prohibits vaccination.
Whether an employee is entitled to a religious-based exemption, however, can be a little trickier, as the law construes the concept of “religion” very broadly. In other words, religion under the law does not refer to only mainstream religions. As set forth in the United States Code of Federal Regulations, religious practices include:
[M]oral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belif of the employee or prospective employee.2
Thus, religious beliefs can include theistic beliefs as well as non-theistic “moral or ethical beliefs” as to what is right and wrong, as long as those beliefs are sincerely held with the strength of traditional religious views. Social, political, or economic philosophies, as well as mere personal preferences, however, are not “religious” beliefs protected by Title VII. Notably, the EEOC has stated in the past that it is unlikely that “religious” beliefs would be held to incorporate secular philosophical opposition to vaccination and the EEOC’s recent guidance on COVID vaccinations reinforces this concept.3
If an employee cannot meet a safety-related qualification because of a disability, the employer may not require compliance unless it can demonstrate that the individual would be deemed a “direct threat” to the health or safety of another employee in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by a reasonable accommodation. Accordingly, an employer must analyze (1) whether there is a “direct threat” (or significant risk of substantial harm); and (2) whether it can or cannot be eliminated by a “reasonable accommodation.”
If an employee cannot get vaccinated due to a disability, the employer should look at that employee’s ability to safely perform the essential functions of the job. These are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
If the employee does pose a direct threat, the employer should consider whether a reasonable accommodation would eliminate or reduce the direct threat. Some examples of include wearing masks, requiring social distancing in the office, working from home, working a modified shift, requiring regular or periodic COVID-19 testing. If the employer decides that a reasonable accommodation would not work, it must establish that the accommodation would present an undue hardship, which means a significant difficulty or expense, which is usually a pretty high standard.
The analysis for religious accommodations is similar, except the courts view “undue hardship” a bit less strictly – it is viewed as having more than minimal cost though, so there still must be some hardship. Furthermore, employers should assume an employee has a sincerely held belief, unless it has a factual basis to question either the religious nature or the sincerity of a particular belief, practice, or observance.
When creating a vaccination policy, employers should also be mindful of whether they create a policy that disproportionately affects members of any protected class. While disability and religion are the protected classes that are mainly affected by vaccination policies, a policy could inadvertently implicate other protected classes. For example, a policy that requires employees over the age of 60 to receive the vaccine would almost certainly invite an age discrimination claim.
Given these issues, employers may want to assess whether mandatory vaccination policies are really necessary or worth the potential downsides. In some industries, like healthcare, it may be easier, arguably better justified, and worth the headache. However, in others, it may not be.. It all depends on the situation, so employers should understand the potential complications. There are also business considerations like workplace morale and culture that may impact a business’s decision to mandate vaccinations. Implementation and follow-through of a thorough policy will make the process easier and offer protection against discrimination claims.
2 29 CFR 1605.1
This blog is intended to provide information generally and to identify general legal requirements. It is not intended as a form of, or as a substitute for legal advice. Such advice should always come from in-house or retained counsel. Moreover, if this Blog in any way seems to contradict advice of counsel, counsel's opinion should control over anything written herein. No attorney client relationship is created or implied by this Blog. © 2024 Brouse McDowell. All rights reserved.