Anyone familiar with the law or with lawyers knows that legal questions rarely have simple answers. Most of the time, those answers begin with “It depends . . .” or end with “except when . . . .” Often the exceptions seem to swallow up the rules. All of the above apply to the question of whether employers can require their employees to get a COVID-19 vaccine.
State laws have long required healthcare workers to receive certain immunizations due to their exposure to vaccine-preventable diseases and vulnerable patients. Likewise, state laws establish vaccination requirements for school children. All states provide medical exemptions, and some state laws also offer exemptions for religious reasons. And as vaccines for seasonal influenza became more effective and more widely available, the question arose as to whether employers could require all of their employees to receive the flu vaccine.
In response to the H1N1 virus outbreak in 2009, the EEOC issued a Guidance answering this question as follows:
May an employer covered by the ADA [The Americans with Disabilities Act] and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Based upon this 2009 Guidance from the EEOC, most employment attorneys agreed that employers could require their employees to receive a flu vaccine so long as they make exceptions for employees with medical conditions that would prevent them from taking the vaccine and for employees who refuse to be vaccinated for religious reasons.
The Pandemic Arrives
Fast forward to 2020. In March of 2020, based on information from the CDC and public health authorities, the EEOC updated its 2009 Guidance, acknowledging that the COVID-19 pandemic meets the definition of a “direct threat” under the ADA. A “direct threat” is defined by the ADA as “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.” Because COVID-19 is considered to pose a “direct threat,” during the COVID-19 pandemic, the EEOC decided that employers would be permitted to ask employees COVID-19-related questions about their medical condition, take their temperatures and send them home if they have COVID-19 symptoms. However, at the time this updated Guidance was issued, there was no vaccine for COVID-19, and the EEOC did not update its response to whether employers may require COVID-19 vaccinations for their employees.
Based on the updated EEOC Guidance, the best answer at present is that employers can legally require employees to get the COVID-19 vaccine, provided reasonable accommodations are provided to those with disabilities under the ADA and those with sincerely-held religious beliefs under Title VII.
In the context of the flu vaccine, many employees have medical conditions that are triggered by ingredients in the vaccine (particularly egg, swine products or fetal cell products). Given the low threshold for establishing a disability under the ADA, such a condition would require that the employer engage in the interactive process to discuss reasonable accommodations with the employee. This accommodation could be arranging for the employee to take an alternate vaccine without the offensive product in it or allowing the employee to get an exemption from the vaccination requirement but requiring him or her to work from home, or to wear additional personal protective equipment while interacting with customers and co-workers.
As with any ADA accommodation request, an employer does not have to provide an accommodation if doing so would cause an undue hardship. As a result of the Supreme Court’s precedent in U.S. Airways v. Barnett, however, establishing an undue hardship under the ADA is very difficult and requires a case by case determination.
Religious Accommodation Under Title VII.
Under Title VII, an employee must present a “sincerely-held religious belief” in order to trigger the requirement that the employer provide an accommodation. Personal beliefs (i.e. veganism) or ethical objections (anti-vaccination philosophies) are generally insufficient to trigger this obligation.
If an employee establishes a sincerely-held religious belief, the employer can still deny an accommodation if it establishes an undue hardship. Note that establishing undue hardship in this context is generally a lower burden for employers than in the ADA context. The employer establishes an undue hardship in response to a request for a religious accommodation by showing the potential harm to the employer, its employees and third parties in the workplace (including customers or clients).
Should Employers Adopt Mandatory Vaccination Policies?
While employers may legally mandate employees to receive the COVID-19 vaccine, subject to the above exemptions, the question remains, should employers adopt such policies. The answer to this question is much more nuanced. There are a number of considerations that employers should keep in mind when deciding whether to adopt a mandatory vaccine policy, including the need for a vaccinated workforce; the nature of the employer’s business; employee morale; and potential legal exposure.
While all employers hope to keep their employees healthy, a vaccinated workforce is more of a business necessity in certain industries. Obviously, there is a special need for immunized healthcare workers, but vaccinated restaurant and retail employees with customer-facing positions will also be important for keeping businesses up and running. In contrast, businesses that can easily accommodate employees working from home or adequately protect them through social distancing and PPE will have less justification for mandating vaccinations.
Because the vaccines have been fast-tracked through the FDA, and received emergency use authorization rather than the full FDA approval, certain employees will be skeptical of the safety and efficacy of these drugs. Like mask-wearing, vaccines have become political, and the subject of various conspiracy theories. For these reasons, employers should consider their workforce and how employees will react to a mandatory immunization policy. Such a policy could negatively impact employee morale, create negative publicity and even result in employee attrition.
Employers should also take into account certain legal issues. In addition to the ADA and Title VII issues discussed above, there are possible workers’ compensation, OSHA and National Labor Relations Act (NLRA) implications for employer-mandated vaccinations. If an employee suffers an adverse reaction after being required to take the vaccine, will the employer be liable? May the employee make a claim under workers’ compensation laws? If the vaccine is improperly administered, will the employer face claims for common law negligence? If employees collectively object to the mandate, will they be protected under the NLRA for collective union activity? All of these questions have yet to be answered.
For all of these reasons, employers may be better served by a voluntary immunization program coupled with education and support. If the employer has the resources, it may also provide incentives for employees to receive the vaccine, such as small bonuses or additional paid time off. Most employers and their employees can agree, reducing or eliminating COVID-19 exposure and transmission will benefit businesses, workers and the economy. However, before taking any hardline measures, employers should give careful consideration to the pros and cons of such measures and proceed in a thoughtful and informed manner.