After a long eight months of the COVID-19 pandemic, it seems that a vaccine will be available soon. With this news, employers across the country are beginning to think about how and when they can safely return to their pre-pandemic “normal.” Over the span of the pandemic, we have seen employers impose a number of requirements on their employees in an attempt to keep their workforces healthy and avoid an intra-office spread. This has included, among other things, mandatory temperature checks, screenings, testing, and mask wearing. Employers are now beginning to ask: “Can we require employees be vaccinated against COVID-19 prior to returning to work?”
The short answer is yes (with a few exceptions, of course), which may surprise many. While we are currently experiencing an unprecedented global health crisis, mandatory vaccinations in the workplace are not new. For years, many employers have required their employees to get annual influenza vaccines, especially in particular industries like healthcare. Therefore, precedent indicates that mandatory COVID-19 vaccinations are permissible, so long as employers are prepared to make medical accommodations under the Americans with Disabilities Act (the “ADA”) and religious accommodations under Title VII of the Civil Rights Act of 1964 (“Title VII”).
Under the ADA, employees may be entitled to an exemption to the vaccine mandate based on an ADA disability that prevents them from receiving the COVID-19 vaccine. To receive such an exemption, an employee would first need to establish that the employee has an ADA-covered disability. Unsurprisingly, courts have not yet agreed whether a sensitivity to vaccinations constitutes an ADA-covered disability. For example, the Eighth Circuit has held that an employee with alleged sensitivities to a vaccine does not have a disability per the ADA; conversely, the Third Circuit has held that an allergy to a vaccine does indeed constitute an ADA-covered disability. In the event an employee could demonstrate that he or she had an ADA-covered disability, it would trigger the employer’s duty to work with the employee to find a reasonable accommodation to the vaccination mandate, unless providing such an accommodation would result in undue hardship on the employer (significant difficulty or expense on the employer) or a direct threat to the safety of the employee or others. Whether an accommodation would cause an undue hardship or result in a direct threat is an extremely fact-intensive analysis, and should be analyzed on a case-by-case basis. The EEOC’s regulations identify four factors to consider when determining whether an employee seeking a reasonable accommodation would pose a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm. In most cases, a reasonable accommodation will likely be possible. However, in some jobs, for example, those that involve exposure to high-risk populations, such as health care workers working with the critically ill, receiving a vaccine might be the only option.
Similarly, under Title VII, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents them from receiving the COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship, (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA). What constitutes a “sincerely held religious belief” also differs among jurisdictions, however, a personal or ethical objection (without religious support) is generally insufficient. In addition to Title VII and the ADA, various state laws may impose similar, or even tighter, restrictions on an employer’s ability to require vaccinations.
With the foregoing in mind, employers should be aware that, while permissible, a mandatory COVID-19 vaccination policy is not without its risks: employees may respond negatively to such a requirement and employers may potentially face discrimination claims if accommodation considerations cannot be reconciled between themselves and their employees. A policy “encouraging” but not mandating vaccination may be a safer alternative for employers.
The Employment, Labor, and Benefits Department at Koley Jessen is closely monitoring the COVID-19 pandemic and its effect on the workforce. Employers with questions are encouraged to contact a member of our team.
