Can Employers Require Employees to Be Vaccinated Against COVID-19?
As the COVID-19 pandemic rages and excitement grows from promising vaccine announcements, employers are asking a critical question: Can I require my employees to get vaccinated against COVID-19?
Although each employer’s circumstances are unique, the short answer is the classic law school answer: “It depends.” The longer answer is “perhaps, but with exceptions, and even then you may want to reconsider.”
As a preliminary matter, whether a private employer can implement a mandatory vaccine policy and require vaccinations depends largely on the employer’s business. It is well-settled that vaccinations and health screenings are “medical examinations” under the Americans with Disabilities Act (“ADA”) and, therefore, the vaccination must be job-related, consistent with business necessity or justified by a direct threat, and no broader or more intrusive than necessary, for the vaccination to comply with, and be permissible under, the ADA. This is why health care providers, schools, nursing homes, and other employers that work in high risk environments or with high risk populations customarily can require mandatory vaccinations while other employers, who may not be able to satisfy this standard, may not. For example, in Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018), the United States Court of Appeals upheld a healthcare system’s requirement that its employees immunize against rubella as a condition of employment.
Beyond this threshold inquiry, an employer implementing a mandatory vaccine policy may be obligated to accommodate (i) an employee’s sincerely held religious belief in accordance with Title VII of the Civil Rights Act (“Title VII”), and (ii) an employee’s disability or medical condition as required by the ADA.
The Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal anti-discrimination laws in the employment context. Periodically, the EEOC issues guidance and, historically, the agency has been wary to recommend required vaccinations outside the healthcare industry. The EEOC has yet to issue specific guidance on COVID-19 vaccinations. But, in response to the 2009 H1N1 flu pandemic, the EEOC issued guidance stressing that an employer considering a mandatory vaccine policy must comply with Title VII and the ADA. To avoid potentially significant liability, an employer must provide the appropriate carve-outs for covered employees. These considerations are discussed in turn below.
Title VII and Sincerely Held Religious Beliefs
Under Title VII, which protects employees against religious discrimination (among other things), an employee must have a “sincerely held religious belief” against vaccination before his or her employer must provide an accommodation or exemption from being vaccinated. A sincerely held but non-religious opposition to a vaccination is legally insufficient; an employee must demonstrate his or her objection to vaccination is based on a legitimate, genuine religious belief. For instance, in the 2020 Third Circuit decision of Brown v. Children’s Hosp. of Phila., 794 Fed. Appx. 226 (3d Cir. 2020), the Court of Appeals affirmed the dismissal of a hospital employee’s discrimination claim where she was fired for not receiving a flu vaccine in violation of the hospital’s flu-vaccine policy. While the court acknowledged the employee’s “holistic health lifestyle” and her own, personal belief that the vaccine might do more harm than good, the court found the employee’s opposition to the flu vaccine was not based upon a sincerely held religious belief. The Third Circuit reiterated that “it is not sufficient merely to hold a ‘sincere opposition to vaccination’; rather, the individual must show that the ‘opposition to vaccination is a religious belief.” Id. (citing Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d 487, 490 (3d Cir. 2017)).
To trigger Title VII’s protections, an employee must tell his or her employer that a sincere religious belief conflicts with a job requirement, such as a mandatory vaccination or immunization policy. Then, the employer is obligated to make reasonable accommodations for the employee’s religious beliefs and practices unless doing so would result in undue hardship to the employer. In this context, the EEOC defines undue hardship as “more than a minimal burden on [the] operation of the business,” creating a relatively low bar for the employer to overcome. That being said, violations of Title VII may subject an employer to significant damages, including back-pay along with compensatory and punitive damages.
Americans with Disabilities Act and Medical Accommodations
Another basis for accommodating an employee’s request to avoid vaccination falls under the ADA. Your employee may have a medical condition or disability preventing him or her from receiving the COVID-19 vaccine. Through its regulations, the ADA protects employees from disability discrimination. The ADA places restrictions on an employer’s ability to exclude an individual with a disability from the workplace without first providing “reasonable accommodations.” The employer must offer these accommodations unless they would place an “undue hardship” on the employer or the employee poses a “direct threat” to the health and safety of others.
To trigger the ADA’s protections, an employee must notify the employer of his or her disability and request a workplace accommodation, such as an exception to a vaccination policy. In response, the employer should meet with the employee to explore a mutually-agreeable accommodation sufficient to allow the employee to continue working in his or her current capacity. Potential accommodations could include things like allowing the employee to work from home (if feasible), requiring a mask in the workplace, or adjusting the employee’s duties to minimize risk of transmission (provided, of course, nothing obligates an employer to change or remove an employee’s essential job functions as an accommodation).
The employer is excused from implementing an ADA accommodation under two circumstances. First, the employer will not be required to provide the accommodation if it would present an “undue hardship,” or, in other words, cause substantial operational difficulties or expense to the employer. The ADA’s undue hardship standard is complicated and more stringent than Title VII’s standard, turning on each situation’s individual facts.
Second, the employer is not obligated to grant an accommodation request if, even with the accommodation, the employee would pose a “direct threat” to the employer, other employees, or the general public. Interpreted in the context of a COVID-19 vaccine, the question is whether any form or degree of accommodation would mitigate the substantial harm posed by an unvaccinated employee. As indicated above, this exception likely applies where the employee works with vulnerable populations, such as in hospitals, nursing homes, or schools. This exception, however, is not guaranteed, even in high-risk settings.
For example, in Ruggiero v. Mount Nittany Med. Ctr., 736 Fed. Appx. 35 (3d Cir. 2018), the Third Circuit held an employee’s ADA discrimination claim was improperly dismissed. In that case, the employee provided two doctor’s notes to the medical center where the employee worked requesting to be exempted from receiving a required TDAP vaccine for medical reasons, specifically, where she had a history of allergies and other medical conditions and suffered from “severe anxiety” due to the vaccine’s potential side effects. Because she alleged her employment was terminated while other employees were permitted to forego the vaccination and remain employed, the Third Circuit revived her case because her allegations raised an inference of discrimination.
Unfortunately, like many statutes, there are few bright-line rules or clear answers of what constitutes an ADA violation. Congress intentionally left these definitions vague, preferring for each case to be decided after a fact-intensive analysis. Consequently, litigating under the ADA is time consuming, expensive, and uncertain, and employers are wise to consult with their legal counsel before taking disciplinary action against employees who request a medical exemption from a vaccine mandate.
Other Legal Considerations
The potential medical and religious accommodations are just two issues employers must consider in determining whether to impose a vaccination requirement. Depending on the industry in which the employer is engaged, the employer must consider how workers’ compensation laws apply. On the one hand, if an employer requires vaccinations of its employees and an employee is harmed in the process (either due to a side effect from the immunization or otherwise), the employee may have a workers’ compensation claim against its employer. On the other hand, employers in certain industries theoretically could face claims of negligence where they decide not to institute vaccination programs. Whether workers’ compensation laws apply to harm and side effects allegedly caused by COVID-19 vaccinations will vary case-by-case and state-by-state.
Similarly, though the Occupational Safety and Health Administration (“OSHA”) has not mandated employee vaccinations, Section 5(a)(1) of the Occupational Safety and Health Act imposes a general duty on employers to provide a safe and healthy workplace and protect employees against workplace hazards that could cause an accident or illness that would most likely result in death or serious physical harm. Thus, employees may contend that employers who do not require vaccinations are putting their workforce at risk in violation of Section 5(a)(1). On the other hand, OSHA may protect employees who refuse to be vaccinated where an employee reasonably believes and can demonstrate that, as a result of receiving the vaccine, the employee could have side effects or suffer consequences that lead to serious injury or death.
Even more issues and employer considerations arise from union-related activity. Section 7 of the National Labor Relations Act (“NLRA”) protects employees’ rights to engage in concerted activity. Employers must exercise due care and should consult with legal counsel before taking any adverse employment action against employees who collectively discuss, object to, or protest an employer-mandated vaccination, as it could lead to an unfair labor practice charge being lodged against the employer.
Given the legal landscape discussed above, it is difficult to predict precisely how current jurisprudence on mandatory vaccine rules and policies will translate to the COVID-19 workplace. Depending on the specific circumstances and the employer’s business, employers might be inclined to simply encourage their employees to vaccinate (rather than issue a company-wide mandate), while continuing to implement other preventative measures in the workplace per operative guidance (CDC, WHO, Department of Health, and other local agencies). Employers who opt to require COVID-19 vaccinations or other “health screens,” however, must ensure that they are job-related, essential, and applied non-discriminatorily as provided above. It also remains to be seen whether the government, at the local, state or federal level, will mandate a COVID-19 vaccination and, if so, for whom and under what circumstances. Such a government-issued mandate could, of course, override some or all of the employer considerations and issues discussed above. Either way, employers are wise to consult with their legal counsel before arriving at such an important decision.