Declining a Shot in the Arm: What Employers Should Do When Employees Refuse Vaccines
Even before the pandemic, the Equal Employment Opportunity Commission (EEOC) and courts nationwide recognized that employees – even nurses and CNAs – had a right to refuse to take a vaccine because of a sincerely held religious belief or a medical reason. Those exceptions apply to refusals to take the COVID-19 vaccine, too. Firing or otherwise disciplining employees who have a legitimate religious exemption violates federal civil rights laws; firing or otherwise disciplining employees who have a legitimate medical exemption violates the Americans with Disabilities Act.
Remember that we are still under the vaccines' Emergency Use Authorization (EUA) period. The EEOC has indicated that employers can require that employees get vaccinated, but the EUA statute contains some language saying that people have a right to refuse any vaccine during the EUA period. Courts have not yet decided the issue. So, there's some legal risk for employers that choose to mandate that employees get vaccinated.
Most health care employers have decided to strongly encourage – but not require – employees to get vaccinated, partly out of concern that mandating the vaccine might lead to staffing shortages if enough employees refuse to get vaccinated and quit or are fired.
A sincerely held religious belief has to be based upon a recognized religion's tenets – generally, it can't be based on a religion headed up by your brother-in-law who signed up to become a clergyman online. Employers may ask employees asserting a religious exemption what religion they belong to and other general questions. If the employee's religion isn't one that the employer has heard of, and doesn't have a known opposition to vaccines, then it's probably time to call an employment lawyer to figure out what to do next.
If it turns out that the religious exemption claim is legitimate, then the employer should talk to the employee about their ability to do everything the job requires despite not being vaccinated. For example, if the employee has been able to keep working by wearing masks and other PPE during the pandemic, then the employee can probably keep doing the job both during the remainder of the pandemic and even after the pandemic is over by continuing to wear masks and other PPE.
A medical exemption from getting vaccinated works in the same way as a request for accommodation under the Americans with Disabilities Act. When an employee refuses to get vaccinated because of a medical reason, an employer can require the employee to have a doctor provide a letter explaining the basis for the medical exemption. Assuming the medical reason is legitimate, then the employer needs to have a talk with the employee about how it can reasonably accommodate the medical exemption from getting vaccinated in a way that allows the employee to do everything the job requires. Again, this will probably require continuing to use masks and other PPE both for the duration of the pandemic and even after the pandemic is over.
Potential Risks of Requiring Vaccines for Employees
If employers choose to require employees to get vaccinated, but employees refuse to get vaccinated for reasons other than a sincerely held religious belief or a medical reason, then employers have some choices to make.
First, there's the legal risk if we're still within the EUA period as noted above.
Second, there's a practical risk. Regardless of whether we're still in the EUA period, is a doctor actually willing to fire an employee for refusing to get vaccinated? Will enough employees refuse to get vaccinated, resulting in a staffing shortage? Health care employers should think through these issues before implementing a vaccine policy.
Lastly, be aware that some people may have legitimate fears about getting vaccinated due to completely understandable historical reasons. Health care employers are in an ideal position to explain that the vaccine is safe, but sensitivity to employees' fears is surely called for.
Health care employers have been calling their employees "heroes" for a year now. Remember to treat them as heroes by listening to their concerns, and figuring out legal and practical solutions.