Employee Vaccinations: Carrot or Stick? By LISA A. KRUPICKA
O
n Tuesday, March 2, 2021, President Biden forecast that “[t]his country will have enough [COVID-19] vaccine supply for every adult in America by the end of May.” Employers that have been reluctant to address the issue of whether or not to require their employees to be vaccinated because of the scarcity of supply must now face the question head on. This article will address the legal considerations1 affecting that decision and offer some practical advice on whether and how to implement a vaccination policy in the workplace.
I. The Stick: Mandatory Vaccination Policy Employment lawyers have been down this road before. Efforts by employers to encourage or require the annual flu vaccine have been subject to legal challenges for years and existing case law provides some helpful guidance. The legal authority on which an employee may oppose a vaccine requirement comes from two sources: the prohibition of discrimination on the basis of religion in Title VII of the Civil Rights Act of 19642 , and the prohibition against discrimination based on a disability in the Americans with Disabilities Act (“ADA”).3
A. Objections Based on Religion Under Title VII, an employee who asserts a religious objection to an employer’s vaccination requirement requires an employer to consider whether it can reasonably accommodate such a religious belief without causing the employer an undue hardship. “Undue hardship” in this context is different from the definition used by the ADA and requires a showing only that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden. In contrast, the ADA undue hardship standard requires a showing that the proposed accommodation would require “significant difficulty or expense.”4
As most world religions do not prohibit their adherents from receiving immunizations,5 an objection to a COVID-19 vaccination based on religion is likely to be based less on formal religious tenets6 than on the broad definition of religion used by Title VII, which defines “religion” to include “all aspects of religious observance and practice as well as belief, not just practices that are mandated or prohibited by a tenet of the individual’s faith.7 There seem to be two schools of thought in the courts about how to determine if an objection is based on a “religious” belief when an unconventional belief is involved. One analysis, embodied by the Third Circuit in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania,8 has a fairly restrictive view of when an unconventional belief can be deemed religious. In making that determination, the Third Circuit looks for three “useful indicia”: (1) a religion addresses “fundamental and ultimate questions having to do with deep and imponderable matters”; (2) a religion is “comprehensive in nature” and “consists of a belief-system as opposed to an isolated teaching”; and (3) a religion often can be recognized by the presence of certain formal and external signs.”9 The Third Circuit explicitly rejects a definition of religion that is based on “essentially political, sociological or economic considerations” or a “merely personal moral code.”10 The court therefore rejected a hospital worker’s basis for refusal to be vaccinated for influenza as not being religious when it was based on what he described as his “conscience.” On the other hand, both the Equal Employment Opportunity Commission (“EEOC”) and the Second Circuit employ a more expansive definition of religion and are much more willing to consider a belief that is more akin to a “moral code” to be a religion. Under the EEOC’s regulation, a belief can be considered religious when it involves “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”11 11
