Elizabeth is an attorney in Obermayer’s Litigation and Labor and Employment Departments. She represents financial institutions, nonprofit organizations, real estate developers and investors, and individuals in a variety of litigation matters, including...Read More by Author
Can Employers Mandate the COVID-19 Vaccine?
Since the COVID-19 vaccines began to roll out in December of 2020, employers have begun to grapple with vaccine-related issues. The most common question from employers is: “is it legal to require my employees to get vaccinated?” Just like the similar question of whether employers can mandate the flu vaccine, the answer is yes—with several notable exceptions.
Title VII of the Civil Rights Act of 1964 (“Title VII”) requires employers to provide reasonable accommodation to the sincerely-held religious beliefs of employees. An exception to a vaccine mandate can be a reasonable accommodation for employees of faith. In a 2012 federal case involving the flu vaccine, a hospital worker refused a mandatory vaccine because she was a vegan and the vaccine contained eggs. The employee was terminated and subsequently sued for discrimination. The court found that it was “plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views” and that, therefore, she could be entitled to protection under Title VII.
Although the COVID-19 vaccine does not contain animal products, the vaccine has been tested on animals. Therefore, employers who mandate the vaccine should be prepared for employees to voice religious concerns outside of established world religions. It is generally difficult to defend a religious accommodations case on the grounds that a religious belief is not “sincere.” Therefore, in most cases, employers are better off engaging in an interactive process with employees to determine whether an exception from a vaccination requirement would pose an undue hardship. Because of the dangers posed by COVID-19 and its new variants, courts may be more sympathetic to employers that take a hard line on vaccination, particularly those in the health care and other industries with contact with vulnerable populations.
The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidelines on the issue of employers mandating the COVID-19 vaccine. Under the Americans with Disabilities Act (ADA), employers must assess, on an individual basis, whether there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Prior to the COVID-19 pandemic, the EEOC had released guidance for pandemic preparedness in the context of an influenza pandemic. Specifically, the EEOC advised: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” It is expected that the EEOC would also adopt this advice in the context of the COVID-19 pandemic.
If an employee refuses to obtain the COVID-19 vaccine due to a disability, there are four factors employers should consider when determining whether an employee poses a “significant risk of substantial harm:”
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
After examining these factors, if an employer determines that an unvaccinated individual exposes other employees to COVID-19, “the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” The guidelines suggest the possibility of prolonging remote working as a means of accommodating employees unable to be vaccinated due to a disability. Whether working from home is sustainable in the long-term is an issue that varies for employers based upon the industry and, potentially, the location. In determining whether a single non-vaccinated individual poses a significant risk of substantial harm, employers should consider the physical layout of the workplace, contact with the public and vulnerable populations, and other factors.
As the COVID-19 vaccines become more widely available, we anticipate that more guidance will be released, and courts may wade into this issue—as they have done in the past with the flu shot. HR Legalist will continue to monitor this issue as well as other COVID-19 related employment law concerns. In the meantime, we remind our readers that religious and disability accommodations issues are highly fact-specific inquiries that often require a case-by-case analysis and the assistance of counsel.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.