As the COVID-19 vaccine becomes more widely available to the public, many employers are considering whether it is legally possible – or prudent – to require employees to receive such vaccines when they become available. The short answer is: it depends. Consequently, before employers begin such mandates, they should consider the following.
Long before the COVID-19 pandemic existed, the EEOC issued guidance on pandemic preparedness in the workplace. This guidance was updated in 2020 in response to the COVID-19 pandemic. The guidance establishes that as a general matter, employers may require employees to be vaccinated. However, the guidance provides two important exceptions to a vaccine requirement. Accommodation may be required due to disability or sincerely held religious practices or beliefs. Ultimately, an employer should not terminate an employee who objects to vaccination without first evaluating whether the employee is protected under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), other federal, state, or local laws or regulations.
The first exception arises when the employee’s health care provider advises the employee not to be vaccinated due to a medical condition. Under the ADA, if an employer requires that an employee be vaccinated against certain illnesses and diseases, and an individual cannot comply due to his or her medical condition, the employer must perform further analysis before taking any action. The employer must first determine if an unvaccinated employee poses a significant risk of substantial harm to the health or safety of the individual or others in the workplace. If an employer determines that an unvaccinated employee does pose a threat to the workplace, the employer must provide a reasonable accommodation for that employee that would reduce or eliminate the risk, unless doing so would cause the employer an undue hardship. An “undue hardship” under the ADA is defined as “significant difficulty or expense,” and is commonly considered within the framework of impact on business operations. For example, an accommodation under the ADA might include allowing that employee to work remotely, installing plexiglass in the workplace, or providing that employee with an enclosed space to work, away from others. Generally, these accommodations are not considered an undue hardship to an employer under the ADA, however, actual impact may vary depending on working conditions and occupation.
Sincerely Held Religious Practice or Belief
Similarly, under Title VII, if an employee declines to receive the vaccine because of a sincerely held religious practice, belief, or observance, the employer must provide a reasonable accommodation for that employee unless such accommodation would impose an undue hardship on the employer. Employers should note that, under Title VII, the definition of “undue hardship” is a lower standard and differs from the definition of “undue hardship” under the ADA. Specifically, in this context, an accommodation will cause an undue hardship if it has more than de minimis cost or burden on the employer’s operations. This means that, under Title VII, an employer has more leeway to decline to provide an employee with an accommodation than under the ADA. For example, an accommodation under Title VII might include changing the employee’s work schedule, allowing the employee to work remotely, or providing the employee with an enclosed space to work, away from others, so long as these accommodations do not cost the employer more than a minimal amount. At times, employers question the validity of the employee’s beliefs; however, the EEOC advises that because religion is such a broad term encompassing many beliefs, practices, and observances, an employer should assume an employee’s request for a religious accommodation is sincere. An employer should only request additional supporting information if the employer has an objective basis for questioning the sincerity of the employee’s request.
Under both the ADA and Title VII, if the accommodation requested by the employee cannot be provided without causing an undue hardship, the employer should continue to work with the employee to come up with an alternative accommodation that does not cause the employer undue hardship, if possible, before terminating the employee.
Beyond the issue of accommodation, employers considering a vaccine requirement should also consider the practical implications. For example, it may be difficult for an employer to impose or enforce a blanket vaccine requirement since people will be eligible for vaccines at different times based on factors such as age, underlying health conditions or medical history, or other priority factors, and availability of the vaccine. Similarly, if an employer has business operations in different states, some employees may be eligible for the vaccine sooner than others based on residency. Also of importance is the fact that the vaccines currently available require two doses, about a month apart, before a person is immunized fully. In addition, although an employer may require that an employee provide proof that they have received the COVID-19 vaccine, the employer may not ask any questions that would elicit the disclosure of genetic information, including questions about family medical history, or make medical inquiries that are not permitted under the ADA.
Finally, although there have not yet been any legal challenges to an employer’s requirement that an employee receive the COVID-19 vaccine, it is likely there will be lawsuits in the future. For this reason, among others, employers may want to consider encouraging employee vaccinations, and providing employees with the necessary resources should they choose to be vaccinated, rather than requiring vaccination.