COVID-19 vaccines are starting to be rolled out, so now it’s time for employers to think about their vaccination policy! Can vaccines be mandatory in the workplace? Should they be? Can policies differ for different employees/workplace arrangements? Should they? What are the pros and cons? What is the right answer?
On December 16, 2020, the EEOC weighed in on this issue and published specific guidance for employers. The guidance affirmed the information presented in this article (which was written and posted prior to the guidance). In a sentence, the EEOC indicated that employers may encourage or possibly require COVID-19 vaccinations, but any such policy must comply with the ADA, Title VII of the Civil Rights Act, and other workplace laws.
Legal experts generally agree that employers have a strong case for requiring employee vaccinations for certain segments of their employee populations. That said, there is an equally compelling argument that employers do not have a strong case for requiring vaccination of all employees, especially those employees who do not work in a public facing role, do not interface with other employees, or who work from home. Whatever vaccination policy is ultimately implemented, it must allow certain exceptions, must be applied only to jobs that have a reasonable business necessity for vaccination, and must be applied in a non-discriminatory manner.
When CAN vaccinations be required?
Employers may require employees to be vaccinated before returning to an onsite workplace if the failure to be vaccinated constitutes a direct threat to the public or to other employees in the workplace, specifically if an argument can be made that the virus could be easily transmitted in the workplace. The more likely it is that non-vaccinated employees might put customers, other employees, and/or the general public at risk, the more compelling the case will be for a vaccination mandate.
When can vaccinations likely NOT be required?
Employers who have office-based business and/or who have a remote workforce will have a more difficult time arguing the necessity of a vaccine mandate in the face of employees who value personal choice over a mandate. Even in an office environment that enables appropriate social distancing, some employees will value a vaccine mandate as they see it as important for personal safety. Other employees may find such a stance unpopular if they feel differently about personal choice. Employers will need to balance issues of personal choice, workplace safety, and attitudes toward public health safety when considering their workplace mandate policy.
Potential Liability for Not Requiring Vaccination
Facing liability for not requiring vaccination in the workplace is a potential conundrum for employers. It is possible that employees might allege that an employer has failed to provide a safe and healthy work environment if vaccination of all workers is not required. Providing a safe and healthy workplace is an Occupational Safety and Health Act (OSHA) requirement for all employers.
It would certainly be groundbreaking to hold employers liable for not requiring vaccination, but it is equally groundbreaking to hold employers responsible for potentially hosting a work environment that could incubate or create the possibility of spreading the disease. Much of this discussion hinges on whether public health authorities (federal or local) take an aggressive or conservative stance in their future guidance to employers regarding whether unvaccinated employees may be allowed in the workplace.
Available guidance indicates apparent support by several government agencies for mandatory vaccination policies. For example, based on the findings of the CDC, the EEOC has determined that COVID-19 meets the "direct threat" definition. During the pandemic, employers have relied on this guidance to justify asking employees more in-depth health-related questions and performing medical screening of employees before allowing them to report for work. However, the EEOC has yet to issue guidance for how it will view mandatory vaccine policies.
For some employers, implementing a mandatory vaccination policy will be an important business consideration. For example, employers with employees in positions that provide direct health care, caretaking of children and the elderly, or serving other populations at elevated risk from COVID-19. However, it is generally thought that it will be difficult to apply a mandatory vaccine policy to ALL employees, especially those who may work at home or not be at particularly high risk for either contracting or spreading the disease.
Because of the reality that rarely do all employees of an employer face the exact same personal risk, job risk, and work circumstances, it is generally thought that it will be difficult to apply a blanket vaccination mandate for all employees. In addition, there are also several important and necessary exceptions to a mandatory vaccine policy. These exceptions require that employers offer reasonable accommodation necessary for certain employees. Thus, adopting a policy that encourages and enables, but does not require, vaccination will be easier to administer for many employers.
Federal laws prohibit employers from applying a mandatory vaccination policy without allowing exceptions for disability status or religious belief. While nothing prohibits an employer from adopting a policy that requires vaccination for all employees, certain accommodations must be allowed for employees needing a disability or religious exception.
It should go without saying, but any accommodation for disability or religious reasons must be applied in a non-discriminatory manner and without retaliatory practices.
Disability: In the context of flu vaccines, the EEOC considers that employers who are subject to the Americans with Disabilities Act (ADA) generally must provide reasonable accommodations to employees with disabilities that prevent them from receiving a vaccine. Under the ADA, an employer may request information including the nature of the limitation or disability and the difficulty or issue that vaccination would cause. An employer may also require an employee to provide documentation from the worker's medical provider to confirm the employee's specific limitation or disability and the need for accommodation.
Sincere Religious Belief: Employers that are subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify them of sincerely held religious beliefs that prevent them from receiving the vaccine. Such accommodations can be more complicated. It should be noted that the EEOC has made it clear that protected religions are not limited to major, well-recognized faiths. Employers should note that the EEOC has indicated, "an employee's belief or practice can be 'religious' under Title VII even if no religious group espouses such beliefs or . . . the religious group to which the individual professes to belong [does] not accept such beliefs." As a rule, employers should accept that requests for religious accommodations are based on sincerely held beliefs. However, if an employee requests such an accommodation and an employer has an objective basis for questioning the sincerity of that belief or practice, the employer can request supporting information from the employee.
This information could be a first-hand explanation from the employee or may be verified by third parties. It should be noted that “sincerity” can be difficult to measure, but generally such third-party verification can be provided by others who are aware of the employee's religious practice or belief. Employers should be careful not to pry for too much information as such practices may bring rise to a claim of requiring unnecessary evidence and thus risking liability for denying a reasonable accommodation request, at best, or a discrimination claim, at worst.
Undue Hardship for Employer
If an employee requests accommodation for disability or religious reasons, the employer has an obligation to provide one unless and until doing so would impose an undue hardship. Importantly, the meaning of "undue hardship" differs under the ADA and Title VII as follows:
- ADA - Disability Accommodation: Undue hardship means "significant difficulty or expense" when considered in light of the accommodation's net cost, the employer's overall financial resources, the employer's type of operation, and the impact of the accommodation upon the employer's operation.
- Title VII - Religious Accommodation: Undue hardship has been interpreted by the Supreme Court as meaning anything more than a de minimis burden.
In either case, when such an accommodation is requested, employers should engage in an interactive dialogue with the employee to determine the nature of the disability or religious conflict, its impact on the individual's ability to perform the essential functions of the job (without compromising the safety of other employees, patients, or customers), the ability to meet the work requirements, and whether a reasonable accommodation exists that would not impose an undue hardship. Potential accommodations could include (but are not limited to) use of personal protective equipment (PPE), moving the employee’s work station or work location, a temporary reassignment, teleworking, or a leave of absence.
What about those who just don’t want the vaccine?
It is important to note that employers are not required to accommodate personal beliefs that do not fall under the ADA or Title VII. Examples include:
- Secular Beliefs: Employers are generally not required to accommodate secular beliefs about the vaccine.
- Personal Medical Beliefs: Employers are not required to accommodate personal medical beliefs, concerns, or fears about the vaccine.
As COVID-19 vaccinations start to become available, employers will want to consider the following:
- Policy on vaccinations for some or all segments of their employee population.
- Anticipate requests for reasonable accommodation and think through how such accommodations will need to be adopted and the impact in workplace environments.
- Communication plan about new vaccination policies to employees.
- The COVID-19 public health and safety guidance from authorities is ever-changing as the pandemic evolves. As such, the EEOC has provided a robust resource page for employers.