Following a long pandemic-marked year, three COVID-19 vaccines have been approved for emergency use and are being administered throughout the country.
On March 11, 2021, President Biden announced that all adult Americans will be eligible to get the vaccine no later than May 1. The availability of the vaccine to the wider public over the months to come could have a significant, hopefully positive effect on how individuals and businesses have operated these past months. It also raises an important question: Can employers require their employees to receive a COVID-19 vaccination?
Mandatory Vaccination Polices
As a general rule, employers have the right to set reasonable health and safety policies for the workplace. This may include requiring employees to be vaccinated for the coronavirus. For example, a mandatory vaccination policy can be particularly appropriate for healthcare-related businesses, such as hospitals or nursing homes, or businesses whose employees have extensive face-to-face contact with the public, such as those in retail and hospitality industries. Notably, the Equal Employment Opportunity Commission (EEOC) has recognized the ability of companies during the pandemic to be more proactive regarding medical inquiries and testing in the workplace in its recently updated guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. However, when an employer requires its employees to be vaccinated, the Americans with Disabilities Act (ADA) and the religious discrimination protections of Title VII of the Civil Rights Act of 1964 come into play.
The EEOC guidance explains that an employee may be entitled to an exemption from a mandatory vaccination requirement based on a disability that prevents the employee from taking the vaccination and entitles the employee to a reasonable accommodation under the ADA. In addition, an employee may be entitled to a religious accommodation pursuant to Title VII if the employee has a sincerely held religious belief, practice, or observance that prevents the employee from taking the vaccine. In either case, the employer must engage in the interactive accommodation process required by the applicable act. If you have any questions about your specific situation, speaking with a knowledgeable attorney can be beneficial.
Interactive Accommodation Process
Whether the request for an exemption to a mandatory COVID-19 vaccination policy arises from a medical concern or a religious belief, the decision of whether to approve an exemption should be made on an individualized, employee-by-employee basis considering the specific circumstances involved. The interactive accommodation process should be a two-way discussion between the employer and the employee to consider whether the unvaccinated employee poses a direct threat of a “significant risk of substantial harm to the health or safety of the individual or others [in the workplace], which cannot be eliminated or reduced by a reasonable accommodation.” Employers should consider four factors in determining whether such a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. In the context of COVID-19, this means the risk that the unvaccinated employee could expose others to the virus at the worksite.
If the employee poses a direct threat to health and safety, the employer must try to come to a reasonable accommodation with the employee.
Employers should discuss and consider whether an employee’s refusal to be vaccinated against the COVID-19 virus for medical or religious reasons can be accommodated (absent undue hardship to the employer) while maintaining the health of the workplace through other measures, such as:
- Allowing the employee to work remotely
- Providing a temporary leave of absence if the employee’s position does not lend itself to teleworking
- Requiring the use of personal protective equipment (PPE), social distancing, and enhanced hygiene protocols in the workplace
- Utilizing alternative vaccine formulas
- Reassigning the employee to a job involving less interaction with the public and others
The decision to adopt a mandatory vaccine policy is controversial and complicated and should be approached with caution. Employers that do mandate vaccination should develop measures and a process to allow accommodations due to disability and religion. These requirements should be clearly communicated to employees, and specific individuals should be designated and trained to handle these accommodation requests.
 The EEOC did not directly state in the guidance than an employer may mandate the COVID-19 vaccination under an Emergency Use Authorization (EUA); however, its responses in the Q&A formatted guidance addressed questions posed as if the employer does require vaccination.
Whether an employer can legally mandate a vaccine distributed under an EUA is outside the scope of this article.