Although the law is in a state of flux, the U.S. Equal Employment Opportunity Commission (“EEOC”) has recently taken the position that an employer can require employees to be vaccinated, subject to two exceptions, which are analyzed on a case-by-case basis. Those exceptions (discussed below) are where the employee refuses a COVID vaccination on the ground that a vaccination would (a) conflict with the employee’s sincerely held religious belief or (b) create a medical issue due to the employee’s physical or mental disability.

Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?

As set forth above, the EEOC recognizes two situations in which an employer’s right to require vaccination is limited – where the employee has a disability which would make it unsafe for him or her to be vaccinated or objects to the vaccine due to a sincerely held religious belief.

Where the employee has a disability that prevents him or her from being vaccinated, to proceed with termination or non-hire, the employer must show that the unvaccinated employee poses a “direct threat” due to a significant risk of substantial harm to the health of safety of others that cannot be eliminated or reduced by a “reasonable accommodation.” This requires an individualized, fact-based analysis based on (i) the duration of the potential harm, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm. An employer can likely meet this standard in an environment where the risk is significant and the job duties require frequent and close interaction with others (e.g., a hospital nurse). An employer will have a harder time doing so, however, in an office environment where a reasonable accommodation might be to allow the disabled employee to work from home or in an office or other work environment in which his or her exposure to others is eliminated or at least greatly diminished.

In the case of a sincerely held religious belief, an employer must provide a similar “reasonable accommodation” unless doing so would be an “undue hardship” for the employer. An undue hardship, in turn, something “more than a de minimis cost or burden on the employer.”

In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?

The United States does not have a “just cause” termination standard, except where established by written agreement, which is rare. Thus, an employer could terminate the employment of an employee for refusing to be vaccinated, subject to the risk of an employee claim for disability or religious discrimination, as discussed above. It is also possible that one or more states could implement laws further limiting an employer’s right to insist upon vaccination, under state law.

*Faegre Drinker