First came Pfizer. Then Moderna.
The COVID-19 vaccine is coming.
By the time you read this article, even more COVID-19 vaccines may very well be in the mix. But is a COVID-19 vaccine the antidote that brings much needed relief to workplaces across America?
Naturally, employers want to know: as employees return to work (whether from a leave of absence or as part of the transition from working from home), can they be required to obtain a COVID-19 vaccine before returning? Or can an employee legitimately object to taking the vaccine?
Yes, but with Some Caveats
Generally speaking, employers can require that their employees receive a vaccine. Our frame of reference is the annual seasonal flu shot, which is required by certain employers, such as those in the health care industry.
But doesn’t a pandemic only strengthen an employer’s right to require a vaccine before returning to work? One would think so, but we also don’t have a ton of guidance on the legality of mandatory vaccines in the workplace. In 2009, the EEOC provided guidance on the question of whether an employer may compel all of its employees to take an influenza vaccine regardless of the employee’s medical conditions or religious beliefs. The EEOC responded as follows:
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.
As forecasted in the EEOC’s comments above, even if employers had the green light to require a COVID-19 vaccine before returning to work, they still have an obligation to consider accommodations based on religious beliefs and disabilities.
As a few of my Littler colleagues pointed out in a recent white paper on this very issue, an initial concern involves the alleged failure to accommodate based on an individual’s religious beliefs. Here, employers must reasonably accommodate an employee’s sincerely held religious beliefs, observances, and practices when requested, unless accommodation would impose an undue hardship on business operations. For instance, an employee may claim that they cannot comply with an employer-mandated vaccine because it conflicts with their religious or beliefs. When faced with an employee’s request to be excused from such a requirement, employers must assess three questions: 1) is the belief religious? 2) is the belief sincerely held? and 3) would providing a reasonable accommodation impose an undue hardship on the employer?
Reasonable Accommodation Because of a Disability
Employers may also have an obligation under the Americans with Disabilities Act (ADA) to allow certain employees to take a pass on the vaccine. If an employee requests an accommodation from an employer’s COVID vaccine requirement because of a disability, the employer must determine whether the accommodation is a reasonable one and whether it imposes an undue burden on operations and on the health and safety of coworkers. As with all ADA accommodation requests, employers will need to conduct an individualized assessment in each circumstance.
Again, as my colleagues point out, even assuming that an employee’s disability “poses a direct threat to his own health,” the EEOC expects employers to explore potential reasonable accommodations absent an undue hardship.
Start the Conversation Now
Access to a reliable COVID-19 vaccine is just around the corner. And so are the accommodation requests. To avoid getting caught unprepared, it’s best for employers to identify a plan now for handling these accommodation requests in the near future.