Plexiglass workstations, mandatory mask policies, and working from home could all become a distant memory once a COVID-19 vaccine becomes available to the public. But the question on all employers’ minds is whether a COVID-19 vaccine can be mandatory for employees prior to returning to work. Well, the short answer is probably yes. Though we don’t have specific guidance yet, here is why we think employers can start preparing a mandatory vaccination policy in the workplace.
Under the law, employers can already require vaccinations if they are job-related and consistent with business necessity. Also, we currently have guidance from the EEOC that allows employers to administer COVID-19 testing to employees to determine if their presence in the workplace poses a direct threat to others. This is because a positive COVID-19 test would tell the employer and employee that the employee was presently carrying a deadly and contagious disease.
On the other hand, the EEOC says that an antibody test is different. Specifically, the EEOC has stated that antibody tests are different because it would not tell the employer whether the employee had an active case of COVID-19 and the employee, therefore, would not pose a direct threat to the workplace.
Based on the current guidance that an employee who is presently carrying COVID-19 poses a direct threat to the workplace, it is reasonable to assume that mandatory vaccinations would be more analogous to COVID-19 testing to help mitigate that threat.
There are likely going to be two prevalent exceptions to this rule. These two exceptions apply when the employee requests an accommodation based on disability or religion.
To request an accommodation based on religion, the employee must have a sincerely held religious belief that can be accommodated without creating an undue hardship for the employer. This means that the employer will need to first determine what the sincerely held religious belief is, and second, whether it can be accommodated. It is important to note that a personal anti-vaccination belief will generally not establish a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy unless this belief occupies a place in the employee’s life that is similar to a more traditional faith—a high bar to meet.
Similarly, an employee can request an accommodation and exemption from the employer’s mandatory vaccine policy based on the employee’s disability. This type of scenario could arise if the employee had a medical condition that could be exacerbated or made worse by the vaccine. If the employee makes it known to the employer that a situation like this exists, then the employer will need to provide that employee a reasonable accommodation unless doing so would create an undue hardship for the employer—another high bar to meet.
Using that “direct threat” language from the EEOC, it appears likely that the EEOC will permit mandatory vaccination policies in the workplace unless an exception is met. Furthermore, the initial requirement that any mandatory vaccine be job-related and consistent with business necessity is highly dependent on the type of industry the employer is in. Health care, travel, and retail are all industries that are already likely to satisfy those requirements. Either way, if an employer wishes to proceed with mandatory vaccination (rather than an optional incentive system), then the employer should be ready to engage in that interactive process to determine whether an objecting employee needs to be provided an accommodation. Here are three things to do in the meantime:
- Inform your employees that you will be requiring COVID-19 vaccinations and provide your employees with a process for requesting an accommodation. A carefully written and worked-through employment policy can help with this.
- When you get an accommodation request, work with the employee and explore accommodation possibilities. This could be allowing the employee to work from home, requiring them to wear a mask, or putting them in an isolated portion of the office and limiting customer/co-worker interaction.
- Finally, keep a paper trail of everything that you do and err on the side of safety. Safety for your employee, but also safety for the employee’s co-workers and customers.