The news about the preliminary success of a COVID-19 vaccine brings hope that the pandemic will not last forever. While much remains to be done before a vaccine is ready for distribution, employers should decide now whether to mandate vaccinations in order for employees to return to the workplace.
Mandatory vaccinations are not a new concept, especially in settings like healthcare and public schools. Federal law allows employers to require vaccinations, as long as their policy complies with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. This is particularly true since the Equal Employment Opportunity Commission (EEOC) has found the pandemic meets the ADA’s “direct threat” standard, meaning that someone with COVID-19 symptoms in the workplace poses a “significant risk of substantial harm.” That standard permits employers to make more extensive medical inquiries and adopt more stringent controls than otherwise allowed by the ADA.
Under Title VII, individuals can ask for an exemption from a mandatory vaccination if they can establish that a sincerely held religious belief prohibits vaccinations. Courts in different jurisdictions have varied in their interpretations of “religious belief.” A federal district court in Ohio, for example, found the plaintiff’s objection to a vaccine because she was vegan constituted a belief held with a sincerity equating to traditional religious views. On the other hand, the Third Circuit has held that an employee’s opposition to vaccinations was a personal belief that did not compare to a sincerely held religious belief.
Employees may also ask to be excused from the mandatory vaccination policy if a medical condition covered by the ADA would render the vaccine dangerous. Such a request falls under the reasonable accommodations requirement of the ADA.
Considerations for employers
Is a mandatory policy necessary for your business given alternatives such as telecommuting, masks, social distancing, and other recommended preventive strategies? If your company decides it is, be prepared for the influx of accommodation requests. Consider alternative ways to ensure overall workplace safety when accommodating employees who cannot take the vaccine. For example, employers may wish to have unvaccinated employees work (or continue to work) from home or work off-hours only, wearing masks, gloves and/or other personal protective equipment (PPE). Businesses are not required to provide accommodations that present an undue hardship, which federal and most state laws define as significant difficulty or expense in providing an accommodation.
If your business does choose to require vaccines for employees, be sure to work closely with your employment attorney to be sure to remain in compliance with workplace law. As always, we are happy to help.