A vaccine preventing COVID-19 is here. While the vaccine may not be widely available until 2021, now is the time for employers to consider what it means for their company and employees. For leaders eager to get employees back in the office, it could be a game changer – if your employees vaccinate.
I. Can you mandate employee vaccinations?
Healthcare employers have long required up to date vaccinations, and many now mandate the annual flu vaccine for employees. But the ability to require employees to vaccinate is not limited to healthcare employers. In general, employers can require employees to get a COVID-19 vaccination as required to maintain a safe and healthy workplace, just as they might require employees to complete a pre-employment physical, drug test, or follow other workplace safety rules.
Yet requiring employees to vaccinate creates legal and employee relations issues that cannot be ignored. These may include strong personal objections from your workforce, and legal objections based upon the right to accommodations for religious beliefs and medical issues. In unionized settings, you may also have bargaining obligations.
a. Religious Accommodations
Under Title VII of the Civil Rights Act, employees may seek exemptions to an employer’s vaccination mandate based on “sincerely held religious beliefs.” To the surprise of many employers, this is a low bar for employees to meet. The Equal Employment Opportunity Commission, supported by the decisions of many federal courts, has taken the position that religious beliefs can be personal and not fall under a formal church or sect. Generally speaking, as long as an employee links his or her refusal to vaccinate with a religious belief, and there is no evidence that the employee is being dishonest (for example, an employee posts on social media that he made up the religious belief to avoid the vaccination requirement), the employee will be exempt from the vaccine requirement unless the exemption creates an “undue hardship” for the employer.
To establish an undue hardship, an employer must show that excusing the employee from the requirement would create “more than a de minimis cost” to the employer. This refers to monetary costs, but also how granting the accommodation would impact workplace safety. The EEOC and courts will examine the employer’s reasoning carefully, including looking at the employee’s job duties, the employer’s resources, and the actual risk created if the vaccine exemption is granted.
For example, consider a nursing home that receives two requests from employees for exemption from its vaccine requirements, one from a nurse who cares for residents, and the other from a financial analyst who works remotely. The nursing home could likely deny the nurse’s request as an undue hardship due to the safety risk it creates for residents, but it may have to grant the request of the financial analyst. Likewise, a grocery store may be able to deny a cashier’s request for exemption, but may have to grant the request of an IT tech at the corporate office. In each case, however, a case-by-case legal analysis is required.
b. Medical Exemptions
Employees may also seek reasonable accommodations under the Americans with Disabilities Act (“ADA”) based on “contraindications” related to the vaccine, meaning that the vaccine could be harmful to the patient if taken. While there are medically supported contraindications that would require exemption, an employee may submit an exemption request from a medical provider that is unclear or not consistent with CDC and other expert guidance.
In such cases, the employer must decide whether to deny the exemption request despite the employee providing a medical provider’s note. Under the ADA employers are permitted, within certain bounds, to seek more information from an employee’s medical provider about the need for an accommodation, or to seek a second medical opinion from an independent medical provider. This can be an expensive process and employers, before implementing a vaccination mandate, should consider how they will handle requests for medical exemptions that lack sufficient detail or support.
As in the religious context, an employer may deny a request for a vaccination exemption if granting the accommodation would cause an undue hardship. As noted, this requires a case-by-case legal analysis.
c. OSHA and State Laws
To date, OSHA and the CDC have not suggested that they will mandate the COVID-19 vaccine at any workplace. However, given the broad police powers asserted by state governors, it is possible that some states will require certain types of employees to be vaccinated. You should stay tuned to legal developments about the vaccine in your state.
d. Unionized Workforce
If your workforce is unionized, mandating vaccinations may require bargaining with the union about the change to policy or about its impact on employees. You should review your collective bargaining agreement and consult with your labor relations team before unilaterally making such a change.
II. Should you mandate a COVID-19 vaccination?
Vaccination mandates evoke strong reactions, both in support and in opposition. Some employees may believe that vaccines cause illness, while others are concerned with infringements on personal liberty. Others may support a vaccine mandate due to workplace safety concerns.
Because of the legal complexity and potential impact on employee relations, employers should carefully consider whether a vaccination mandate makes sense for their workplace. Employers might ask the following questions:
- Can less invasive mitigation methods, such as masking, social distancing, and good ventilation, achieve the desired goal of a healthy workforce, or do your employees work in such close proximity to each other and/or customers that risk of transmission is high?
- Do your key stakeholders, including your Board, CEO, and clients or customers, support a vaccination mandate?
- How can you meaningfully involve line employees in the decision-making process about a vaccination mandate?
- Will a vaccination mandate result in unwanted media attention or political pressure?
- Would your vaccination mandate create the risk of unionization?
- Are your HR, Recruiting, Legal, and Communications teams adequately resourced to develop and manage a vaccination program, which may cause staff disruption?
Implementing a vaccination mandate is a complex and controversial business decision. It could save lives and improve your business – or it could jeopardize it. It is important to partner with an attorney (we know a few) early in the process to ensure that you fully consider the legal and employee relations implications and, if you move forward, develop consistent and defensible procedures.