reveal that between 20-30% of Americans do not plan to take the COVID-19 vaccine1
. This presents the difficult issue of what is an employer to do if their employee will not be vaccinated but wants to continue to come to their workplace. Now that the vaccine is being made available to more and more Americans every day, can your employer require you to get vaccinated once you qualify to receive one?
The short answer, according to recent federal law and the Equal Employment Opportunity Commission (EEOC), is yes, provided the employee is permitted to seek accommodations on the basis of a disability or sincerely held religious belief2
. The employer must engage in the interactive process to determine whether it can make a reasonable accommodation for the employee.
Employers must also consider all applicable state or local laws prior to implementing a policy of mandatory vaccinations. Additionally, in unionized workplaces, employers need to review any collective bargaining agreement to see if there was a duty to bargain with the union over this issue.
The religion exception could apply based on the 1964 Civil Rights Act (Title VII) which protects employees from religious discrimination. Two things are required of the employee to assert this exception. First, they need to prove the religious belief is sincerely held. Second, the employee must show not being vaccinated is not an undue hardship on the employer. A Christian scientist employee may be a good example, since their religious beliefs often forbid them from taking most medicines.
The disability or medical issue exception is based
on the Americans with Disability Act (ADA)3
. The employee needs to show she has an ADA-recognized disability that prevents her from being vaccinated for COVID-19 and that this exception does not cause an undue hardship for the employer. An example might be a worker with a diagnosed compromised immune system who thinks the vaccine could have an adverse health effect.
In prior related federal matters, Occupation Safety and Health Administration (OHSA) has held that an employer can require an employee to be vaccinated for seasonal flu. In a related matter, the EEOC has already held that for the sake of workplace safety employees can be required to take a COVID-19 test as a requirement to return to work, provided it does not violate the ADA4
. This may be as benign as taking the employee’s temperature as he or she enters the workplace or having the full test.
From a liability point of view, employers considering mandatory vaccines must weigh the potential lawsuit liability from employees who contract COVID-19 at the workplace versus employees who may have an adverse reaction to the vaccine or refuse to comply with the policy for whatever reason. A mandatory vaccine policy for healthcare workers or anyone who works with the medically fragile would be an easier decision since these workers have been required to take vaccines for many years5
. Union construction workers may a different story.
In these volatile times, the employer needs to look closely at all the issues before implementing any mandatory employee COVID-19 vaccine policy. Many HR professionals are recommending as a compromise that the employer encourage employees to be vaccinated and, where practical, assist employees as much as possible in getting their shots.
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.
1. Gordon, Deb, “Will Your Boss Require you to Get a Covid – 19 Vaccine “, Forbes, January 19, 2021, https://www.forbes.com/sites/debgordon/2021/01/19/will-your-boss-require-you-to-get-a-covid-19-vaccine-new-data-show-employers-are-split/?sh=24276e3c36ac
2. Spiggle, Tom, “Can Employers Force Employees to Get a Coronavirus Vaccine”, Forbes, November 20, 2020, https://www.forbes.com/sites/tomspiggle/2020/11/20/can-employers-force-employees-to-get-a-coronavirus-vaccine/?sh=422bc0066eb4
3. Genovese, Daniella, “Can Your Employer require you to get a Covid-19 Vaccine to Go to Work”, Fox Business, December 3, 2020, https://www.foxbusiness.com/lifestyle/can-your-employer-require-you-to-get-a-covid-vaccine-to-go-to-work
5. Spiggle, Forbes