Employee Vaccinations: Carrot or Stick?

By LISA A. KRUPICKA

On 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

Likewise, the Second Circuit defines religion to involve “ultimate concerns,” that are more than “intellectual,” i.e., when “a believer would categorically disregard elementary self-interest in preference to transgressing its tenets.”12 Using this standard, a court determined that a couple’s rejection of immunization of their children as a condition for attending school was religious when they described their existence as “God in expression or life in expression” and believed that immunization “interferes with the health of the organism.”13 The court found that the repeated references to God, coupled with the parents’ “willingness to engage in a protracted legal battle” to be dispositive.14

The Sixth Circuit has not been squarely confronted with this issue to date, but at least one federal district court in the Sixth Circuit has relied on the EEOC regulations to deny a motion to dismiss a claim that an employee had a religious objection to the flu vaccine, holding that veganism could plausibly be a religious belief at the pleading stage.15 That case was eventually settled out of court.

Even if a legally valid religious objection to a vaccine is identified, the employer must then determine if it can accommodate that objection without causing an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business, including impairment of workplace safety.16 A hospital or other healthcare employer would likely be most successful in asserting undue hardship based on safety in response to a religious objection to a vaccine, but there are as yet no reported cases squarely considering whether a hospital can fire or refuse to hire someone who has direct contact with patients but refuses a vaccine on religious grounds. The EEOC has avoided taking a direct position on the issue.17 There are, of course, alternatives to firing or refusing to hire an employee who will not take the vaccine that must be considered in this context. Such alternatives are discussed in more detail in the next section.

B. Objections Based on Disability

There are three provisions of the ADA that come into play when considering whether to create a mandatory vaccination program: (1) by prohibiting employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm that cannot be eliminated or reduced with a reasonable accommodation)18; (2) by severely limiting employers’ disability-related inquiries and medical examinations19; and (3) by requiring employers to provide a reasonable accommodation for individuals with disabilities absent undue hardship20. Under ordinary circumstances, these provisions would severely curtail an employer’s ability to ask an employee whether he or she is ill and to require employees who are ill to stay home without considering other alternatives. However, the declaration in March 2020 of a COVID-19 global pandemic by the Centers for Disease Control and Prevention (“CDC”) and the World Health Organization (“WHO”) has made it a matter of life and death to ask questions and take actions that would otherwise violate the ADA.

Recognizing this circumstance, on March 21, 2020 the EEOC issued an updated version of their 2009 guidance on the H1N1 pandemic to address the COVID-19 pandemic.21 Under this guidance, employers are permitted to ask employees if they have COVID-19 symptoms, require them to be tested for COVID-19 as a condition to entering the workplace, and take employees’ temperature even though these actions would ordinarily be prohibited by the ADA. Moreover, under this guidance, the EEOC considers employees with COVID-19 to automatically pose a direct threat to themselves or others in the workplace. This means that employees who exhibit symptoms consistent with COVID-19 infection or who have tested positive for COVID-19 may be sent home and not permitted to come back to work until they are symptom free and no longer contagious.

Once a vaccine had been developed, the EEOC updated its technical assistance publication in December 2020 to address how a COVID-19 vaccine program interacts with the legal requirements of the ADA.22 Under this updated publication, a vaccination is not considered a medical test under the ADA and employers may therefore require it. However, although the actual administration of the vaccine is not a medical examination, pre-screening vaccination questions may be likely to elicit information about a disability, and so could run afoul of the ADA’s prohibition against such inquiries. The way to avoid this dilemma, the EEOC suggests, is to use a third-party provider like a pharmacy, which can ask the questions without violating the ADA.

So far, so good. But wait! There will be some employees who cannot take a COVID-19 vaccination because of a disability. These may include those who are allergic

to the vaccine’s ingredients, are immune compromised, or pregnant.23 The ADA still requires employers to go through the interactive process with such employees to determine if a reasonable accommodation can be made that would allow the employee to remain employed without receiving the vaccine. Accommodations to be considered include teleworking, paid or unpaid leave, reallocation of non-essential job functions, transfer to another job, or wearing a mask and social distancing. The EEOC encourages employers to consult with the most recent CDC guidance in assessing whether an accommodation is possible. Only after the interactive process has been completed and all possible accommodations have been considered and found unreasonable may an employer terminate a disabled employee who has a medical objection to taking the vaccine.

C. Other Objections

In this current age of political polarization and misinformation spread on social media, there is going to be a significant number of people who will object to receiving the vaccine on grounds other than religion or disability. Concerns based on misinformation include concern that the vaccine will transfer microchips into the blood stream so the government can monitor people’s activities, that the vaccine will alter their DNA, that the vaccine with give them COVID-19, or that the vaccine causes infertility.24 More rational concerns include whether the vaccine has been adequately tested for safety and efficacy, mistrust of the medical establishment to administer the vaccine based on past mistreatment of Black patients, and the seriousness of the vaccine’s side effects.

None of these objections is legally significant. Employers who override those concerns and require all employees to receive the vaccine are unlikely to create legal exposure for themselves. However, as a practical matter, such a requirement will likely lead to the termination of any number of otherwise good employees in order to enforce the policy, impacting both the bottom line and employee morale. These practical considerations are significant, and should give employers pause before creating a mandatory vaccination policy.

II. The Carrot: Vaccine Incentive Programs

A number of large employers, including Kroger, Aldi, Target, Amtrak, Walmart, Chobani, and Trader Joe’s, have taken a different approach to getting their employees vaccinated: a vaccine incentive program that rewards employees for getting the COVID-19 vaccine.

There have been concerns about whether a vaccine incentive program would be impacted by the EEOC’s rules on the ADA and employee wellness programs. The ADA permits employers to implement wellness programs that require employees to disclose medical information only if participation is voluntary. Guidance on what level of incentive that may be offered without affecting the voluntary nature of the program has been in limbo for some time now after the Commission’s regulations limiting the value of incentives offered to employees to 30% of the total cost for self-only coverage under their group health plans were struck down by a D.C. federal district court in 2017, causing their subsequent withdrawal.25

Immediately prior to President Biden’s inauguration, the EEOC issued new proposed regulations on January 7, 2021 limiting the incentive employers could offer to employees for participation in a wellness program to items of only de minimis value like a water bottle or a gift card of modest amount. Before the proposed rules could be published in the Federal Register, however, President Biden issued a directive to all federal agencies to withdraw all proposed rules not published in the Federal Register by January 20, 2021, pending further review.

On February 1, 2021, a group of business interests and trade groups wrote the EEOC asking for guidance on what ADA-compliant incentives could be offered to employees through a wellness program to persuade them to take the COVID-19 vaccine.26 To date, the EEOC’s only response has been to withdraw the proposed rules and remove them from its website.27

Employers are once again left with no guidance as to the value of incentives that can be offered to employees to get the vaccine as part of an employee wellness program without running afoul of the ADA.28 Nevertheless, employers have gone forward with vaccine incentive programs, offering incentives that range from paid time off to get vaccinated to $100 cash payments to those who show proof of vaccination. Appropriate accommodations must be made for employees who object to the vaccine on disability-related or religious grounds, such as requiring them to watch a video on COVID-19 safety in order to receive the same incentive other employees can earn by getting vaccinated.

Based on experience to date, it is unlikely that vaccine incentives alone will accomplish employers’ goal of having everyone in the work force vaccinated. Fear and mistrust of the vaccine have become deeply entrenched in U.S. culture, and even $100 may not be enough to overcome it.

III. Recommendations

Given the legal uncertainties and complications surrounding a mandatory vaccination policy, many employers are taking a more cautious approach by strongly encouraging their employees to be vaccinated, paying for the vaccine if necessary, and giving employees paid time off to get the shot. A more robust incentive program involving cash payments may encourage some employees who are on the fence about getting vaccinated, but not likely all of them. Getting all employees vaccinated is an important goal, but it is likely one that can only be achieved, if at all, with time, patience and continuing positive information about the vaccine. 

1 This article will not address the legal implications for a vaccination program as related to its implementation through an employer’s group health plan, including possible implications under the Employee

Retirement Income Security Act (“ERISA”) and under the Health

Insurance Portability and Accountability Act (“HIPAA”). 2 42 U.S.C. § 2000e. 3 42 U.S.C. § 12101. 4 Compare Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (interpreting standard under Title VII) with 42 U.S.C. § 12111(10)(A) of the ADA. 5 Religions that do not prohibit immunization include Islam, Judaism,

Buddhism, Hinduism, Roman Catholicism, and most Protestant denominations. Immunizations and Religion, VANDERBILT UNIV.

MED. CTR.: OCCUPATIONAL HEALTH CLINIC, https://www. vumc.org/health-wellness/news-resource-articles/immunizations-andreligion (last visited Mar. 15, 2021). 6 Recently, however, some evangelical Christians and Catholics have registered objections to the Johnson & Johnson vaccine in particular because it is derived from a line of cells tracing back to a fetus that was aborted in 1985, although the official position of the Vatican is that

Catholics may use a “morally compromised” vaccine if none other is available. See Pub. Affairs Office, U.S. Bishop Chairmen for Pro-

Life and Doctrine Address Ethical Concerns on the New COVID-19

Vaccines, USCCB (Dec. 14, 2020), https://www.usccb.org/news/2020/ us-bishop-chairmen-pro-life-and-doctrine-address-ethical-concerns-newcovid-19-vaccines. 7 42 U.S.C. § 2000e(j). 8 Fallon v. Mercy Catholic Med. Center of Southeastern Pennsylvania, 200 F.Supp.3d 553 (E.D. Penn. 2016), aff’d, 877 F.3d 487 (2d Cir. 2017). 9 Id. at 560. 10 Id. (quoting United States v. Seeger, 380 U.S. 163, 173 (1965)). 11 29 C.F.R. §1605.1. 12 Int’l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981). 13 Sherr v. Northport-E Northport Union Free Sch. Dist., 672 F.Supp. 81, 92-93 (E.D. N.Y. 1987). 14 Id. 15 Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 1:11-

CV-00917, 2012 WL 6721098, at *4 (S.D. Ohio 2012). 16 See, e.g., EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2021) (“A religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship” for an employerprison). 17 See EEOC Informal Discussion Letter, EEOC (March 5, 2012), https:// www.eeoc.gov/foia/eeoc-informal-discussion-letter-250. 18 42 U.S.C. § 12111(3), (8); 29 C.F.R. § 1630.2(r), 1630.15(b)(2). 19 42 U.S.C. § 12112(d)(4)(A). 20 42 U.S.C. § 12112(b)(5); see also § 12111(3); 29 C.F.R. § 1630.2(r). 21 See Pandemic Preparedness in the Workplace and the Americans with

Disabilities Act, EEOC (Mar. 21, 2020), https://www.eeoc.gov/laws/ guidance/pandemic-preparedness-workplace-and-americans-disabilitiesact#7. 22 See What You Should Know About COVID-19 and the ADA, the

Rehabilitation Act, and Other EEO Laws, EEOC (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19and-ada-rehabilitation-act-and-other-eeo-laws. This guidance also discusses the implications of a vaccination program under the Genetic

Information Non-Discrimination Act (“GINA”). 23 See Interim Clinical Considerations for Use of COVID-19 Vaccine

Currently Authorized by the United States, CDC (Mar.5, 2021), https://www.cdc.gov/vaccines/covid-19/info-by-product/clinicalconsiderations.html. 24 The Real Facts about Common COVID-19 Vaccine Myths, UC

DAVIS HEALTH (Dec. 21, 2020), https://health.ucdavis.edu/healthnews/newsroom/the-real-facts-about-common-covid-19-vaccinemyths/2020/12. 25 See AARP v. EEOC, 267 F.Supp.3d 14, 38 (D.D.C. 2017); 83 Fed.

Reg. 65,296 (Dec. 20, 2018). 26 Stephen Miller, Employer Groups Seek Clarity on COVID-19

Vaccination Incentives, SOCIETY FOR HUMAN RESOURCES

MANAGEMENT (Feb. 5, 2021), https://www.shrm.org/ resourcesandtools/hr-topics/benefits/pages/employers-seek-clarity-oncovid-vaccination-incentives.aspx. 27 See Rulemaking, EEOC https://www.eeoc.gov/regulations/rulemaking (last visited Mar. 15, 2021). 28 However, for employers who are simply asking employees to show proof of vaccination by a third party or their own healthcare provider outside of an employer-sponsored wellness program, the EEOC has made clear that asking or requiring an employee to show proof of receipt of a

COVID-19 vaccination is not a disability-related inquiry. See note 22, infra, at question K.3.

Lisa A. Krupicka is a member of Burch, Porter & Johnson, PLLC, where she is head of the firm’s Labor & Employment Group. She is a Fellow of the College of Labor & Employment Lawyers and a frequent commentator on employmentrelated topics.