With two approved vaccines for the prevention of COVID-19 now available, eventually, all individuals will have access to the vaccine. Although it may be several months before it is available to everyone, many employers are asking whether they can require employees to get the vaccine when it is available. In general, the answer will likely be yes – with some exceptions, as outlined below. Before implementing any mandatory vaccination program, employers must consider many legal and practical considerations.
The EEOC and Mandatory Vaccination
The Equal Employment Opportunity Commission (EEOC) released FAQs on whether an employer can mandate the COVID-19 vaccination. In general, an employer can have a mandatory vaccination policy, provided employers consider religious and medical accommodation requests.
Under Title VII, a “sincerely held religious belief” may be a prerequisite for a religious accommodation. Under Title VII, “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” An individual’s sincerely held religious belief does not need to originate from a common organized religion to require reasonable accommodation by the employer. EEOC guidance states that an employee may seek a religious exemption from a mandatory vaccination requirement if “the employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from” receiving the vaccine.
EEOC guidance also states that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents safe vaccination. Upon receiving a request from an employee to be exempt from immunization requirements for a disability-related reason, an employer may seek verification that the individual has a record of an actual disability as part of engaging in the interactive process to determine if the ADA applies. The determination of whether an individual meets the definition of disability for ADA purposes must be made on a case-by-case basis. In evaluating whether a vaccination requirement is reasonable, the EEOC states that the employer must show that an unvaccinated employee would pose a direct threat due to 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.” Employers should conduct an individualized assessment to determine if a direct threat exists or whether a reasonable accommodation may be made. When an employee cannot receive a vaccination for health-related reasons, it may be necessary to approve alternative infection control practices as a form of accommodation.
Vaccine Recommendation vs. Requirement
So employers can legally mandate the new vaccinations – but will they? The potential medical and religious accommodations are just two factors employers must consider when considering a COVID-19 vaccination requirement. The question for most employers and employees alike is whether – or when – individuals will widely accept a COVID-19 vaccine.
In past years, many employers, especially health care providers, have mandated vaccinations. Other employers have encouraged them by arranging onsite vaccinations at the workplace and/or paying for employee vaccinations.
Employee concerns and reluctance over the vaccine may complicate the decision to mandate the vaccine. Employers can likely expect significant objection to a mandate of the new vaccine, which may be viewed by some as risky or ineffective. Recent surveys show as few as half of Americans are willing to be vaccinated against COVID-19. Many are nervous about the vaccine and the speed at which it’s been developed. Others believe mandating the vaccine is part of an employer’s responsibility to maintain its workers’ health and well-being.
So, What Should Employers Do?
With conflicting opinions in every industry, one thing is certain – this is sure to be an employee relations issue. Confusion surrounding COVID-19 vaccines is inevitable, and even though approved, it may be months before enough people can get the vaccine to slow the pandemic.
Employers should evaluate whether a mandatory vaccination policy is necessary for the business. If so, what is the consequence for an employee who refuses to get a vaccine just out of fear that it was developed too fast or another reason unrelated to religious or disability accommodation? Employers mandating vaccines should do so in consideration with other alternatives, such as remote work, physical distancing, face coverings, and other CDC-recommended guidelines to prevent the spread of COVID-19. Employers should also be prepared to respond to employees who refuse to come to work because the vaccine is not mandated. Depending on the industry, an employee’s refusal to get a vaccine may be grounds for job separation.
Before mandating vaccinations, employers are encouraged to seek legal counsel. Additionally, if employees are represented by a union, without applicable existing contract language, mandating vaccinations must be bargained with the union. Employers should consider guidance from the CDC, EEOC, and state and local health officials regarding the availability of the vaccine, as well as the CDC guidance, What to Expect after Getting a COVID-19 Vaccine. With reports of some individuals experiencing side effects or temporary illness following vaccination, employers may want to plan ahead by encouraging employees to schedule time off following vaccination.
If an employer determines to mandate the vaccine, they should ensure they have a written policy. This policy should include instructions that accommodation requests should be made to a central location, typically Human Resources. Such requests and any related discussions or documentation must be treated confidentially, just as an employer would with any other accommodation request.
Archbright members are encouraged to contact the HR Hotline or legal team with specific questions or to seek clarification. Archbright will continue to monitor the impact of COVID-19 in the workplace and will provide updates as appropriate.
Post updated from the original on 10/15/20.