As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces. Real legal and practical risks remain for unwary employers. In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan. This four-part blog post addresses some of the issues employers may face as they consider the future of their workplaces. Today’s topic addresses issues surrounding mandating a vaccine. Future blogs will address vaccine incentives, other issues relating to the vaccine, and what a workplace with vaccinated employees might look like.

ADA Accommodation
The EEOC has published guidance presuming that employers may require employees to be vaccinated in order to work on-site. However, as is often the case, there are exceptions and potentials for legal risk. First, employers must provide a reasonable accommodation for employees who cannot be vaccinated due to a disability. In most cases, that will involve a request not to work on site. While not impossible, it may be difficult for employers who have permitted remote work for the past year to claim that remote work is not a reasonable accommodation. For employees who cannot perform their duties off-site, the employer will need to determine whether allowing an unvaccinated employee onto the worksite poses a “direct threat.” The EEOC has stated that COVID-19 poses a “direct threat,” which has been used as a basis to exclude individuals from the workplace if they are showing symptoms or have been in close contact with an infected person. However, there is not yet any guidance on whether an individual who is not showing symptoms and has not been in close contact with someone with COVID-19 poses a direct threat in the workplace simply by virtue of being unvaccinated. The determination of a direct threat must consider four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. The analysis must be made on an individualized basis, and likely will require the employer to consider such things as the nature of the work, the risk of transmission, the ability to observe health and safety precautions such as masks and social distancing, and the level of community spread.

Title VII Religious Accommodation
Employers must also provide a reasonable accommodation to employees who have a religious objection to the vaccination based on a sincerely-held religious belief. “Religion” is defined very broadly to include not only organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are uncommon, not part of a formal church or sect, only subscribed to by a small number of people (or only a single individual), or that seem illogical or unreasonable. The presence of a deity is not required, so long as the belief occupies a place similar to that filled by God. Employers therefore rarely will be in a position to question either the religious nature of the belief or the fact that it is sincerely held. However, the standard for providing an accommodation imposes a much lighter burden on an employer than does the ADA. While the standard for proving undue hardship under the ADA requires a significant burden or expense, undue hardship in the context of a religious accommodation is defined as more than a de minimis cost or expense.

Pregnancy Accommodation
Although normal pregnancy is not considered a disability under the ADA, employers may not discriminate against employees who are pregnant, and many states impose pregnancy accommodation requirements that are similar to ADA requirements. Pregnant employees may be entitled to an accommodation in the workplace regarding vaccinations, and employers should be sure to check the law of the state where the employee works (and, if the employee works remotely, where the employee lives) to determine their obligation to accommodate pregnant employees.

State Laws
Employers should also keep an eye on state law to ensure that their state does not prohibit them from mandating the vaccine. Bills have been proposed in at least 23 states to ban employers from requiring workers to get vaccinated against COVID-19 or other infectious diseases. To date, none of the bills have passed, but employers must keep watch.

Emergency Use Authorization
Despite the EEOC’s apparent acceptance of an employer’s right to mandate a vaccine, there are some who argue that the statute providing the Emergency Use Authorization for the vaccines prevents employers from mandating the vaccine. The statute providing for EUA provides that each individual must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” There are some who believe that this provision means that vaccination cannot be mandated, because the individual must have the option to refuse the vaccine. There are others who believe that, while vaccination cannot be forced, there can be consequences to refusal, such as the loss of a job. This issue has never been decided by a court, and uncertainty means risks for employers and the possibility for lawsuits based on theories of wrongful termination or lawful off-duty conduct.

Employers must give careful thought to the choice to mandate the vaccine, taking these legal considerations, as well as practical considerations, into effect. Employers who wish to mandate the vaccine are strongly suggested to consult legal counsel and have a written policy to address these issues.

Stay tuned for Part 2, which will discuss vaccine incentive plans.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

[View source.]