MANDATING COVID-19 VACCINES –
Just Because You Can Do Something Doesn’t Mean You Should Do Something By JAMES A. PARETTI, JR. and KAITLYN A. HANSEN
W
ith the COVID-19 vaccine becoming more widespread, and millions of Americans itching to return to some sense of normalcy, employers are facing tough decisions on when, and how, to return employees to work safely. Moreover, as federal, state, and local guidance regarding safety protocols and vaccines change on a day-to-day basis, employers have struggled to keep up. In late May 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency that enforces federal civil rights laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act (“GINA”) updated its guidance relating to whether employers can mandate employees to receive the COVID-19 vaccine.
So, Can Employers Require their Employees to Receive the COVID Vaccine? Generally, Yes. The EEOC’s guidance makes clear that federal equal employment opportunity laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they are subject to the reasonable accommodation provisions of Title VII and the ADA. “Reasonable accommodation” can mean different things depending on whether an employee maintains an objection to the vaccine due to a disability, or due to their religion. Under the ADA, employers may maintain safety-related qualifications standards (here, mandatory vaccination programs), so long as the standards are both job-related and consistent with business necessity. Due to the public-health crisis surrounding the COVID-19 pandemic, most employers with in-person operations will likely meet this standard. If an employee’s disability prevents them from receiving the vaccine, an employer generally may not require compliance unless that individual poses a “direct threat”—a significant risk of substantial harm—to themselves or to others. As you can imagine, this requires employers to make an individualized assessment regarding the employee’s ability to safely perform the essential functions of their job. An employer confronted with an employee’s request to decline the vaccine due to their disability must make a two-fold determination. First, is there a direct threat to others in allowing the employee to abstain from vaccination? In making that determination, employers should consider the duration of the risk, nature and severity of the potential harm, the likelihood that the harm would occur, and the imminence of 34
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the potential harm. Next, would a reasonable accommodation reduce or eliminate the threat? An employer must engage in the typical, flexible interactive process and provide accommodations for employees who seek to avoid vaccination, so long as the accommodation does not impose an undue hardship—“a significant difficulty or expense”—on the employer. The EEOC’s guidance notes that a reasonable accommodation for an employee with a disability might include requiring unvaccinated employees to wear a facemask, allowing them to work a staggered shift, allowing telework if feasible, reassignment to a vacant position in different workspaces, or making changes to work environments such as improvements in ventilation systems or limiting the employee’s contact with others. Additionally, where an employee’s objection to the vaccine is based on her pregnancy, the employer must ensure that it treats the employee the same way—and provides the same accommodations—it would to other employees similar in their ability or inability to work. Employers should also keep in mind that they may have an obligation to engage in the interactive process for employees who are indeed fully vaccinated but have an underlying disability that creates a continuing concern that they face a heightened risk of severe illness should they contract COVID. On the other hand, reasonable accommodations required under Title VII can be less taxing. Where an employee maintains a sincerely-held religious belief, practice, or observance, an employer must provide a reasonable accommodation to that employee unless the accommodation would cause an undue hardship—"more than a minimal cost or burden”—on the employer. In assessing this burden, an employer should consider the proportion of employees already partially or fully vaccinated in the workplace and the extent of the employee’s contact with non-employees who may or may not be vaccinated. Reasonable accommodations in this context can also include requiring unvaccinated employees to wear facemasks, socially distancing from coworkers or non-employees, allowing the employee to work modified shifts, requiring periodic COVID tests, providing telework opportunities, or allowing the employee to accept reassignment. Employers with unionized workforces must also specially consider their obligations under any applicable collective bargaining agreement. Because employers have bargaining obligations to their unionized workforces, whether the employer can require its employees to be vaccinated, the administration of vaccinations, and whether the employer can discipline those who refuse will depend on the terms of the collective bargaining agreement and could require additional bargaining with the union.
