Can You Make Your Workplace COVID-Free and Safe and Require Employees to Vaccinate?
Employers across the nation are considering whether they can require employees to vaccinate. Is it right for your business?
Since spring, a vaccine has been seen as the way to get back to business as usual. With daily record-breaking new case numbers, hospitalizations, and deaths, news that the Food and Drug Administration is expected to approve a COVID-19 vaccine this week and a second vaccine later this month cannot be more promising.
Employers across the nation are considering whether they can make their workplaces COVIDfree and safe by requiring employees to be vaccinated. Requiring employees to get certain vaccines is standard in some industries, such as the healthcare sector. However, whether it is right for your business necessitates careful consideration of issues, including whether you could be liable for adverse side effects.
Making Vaccines Mandatory
Can you require employees to vaccinate? The U.S. Equal Employment Opportunity Commission (EEOC) has not issued guidance regarding a COVID-19 vaccine. However, with the H1N1 flu pandemic of 2009, the EEOC stated employers could require employees to get the flu vaccine, as long as they provided a reasonable accommodation to employees with religious objections and disabilities under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), further discussed below.
The EEOC is likely to issue guidance related to the COVID-19 vaccine as it did with the H1N1 flu vaccine; however, until that time employers should evaluate whether it may require employees to get the COVID-19 vaccine by using the ADA analysis for vaccines generally. Under the ADA, vaccinations are considered a “medical examination.” As such, consistent with requiring any medical examination under the ADA, employers must show the vaccine is job related, consistent with business necessity or justified by a direct threat, and no broader than necessary.
The most clear-cut COVID-19 example meeting this standard are healthcare workers: a COVID19 vaccine is job-related in that workers are at risk of exposure from treating patients and at risk of spreading the virus to patients, some of whom may be high-risk individuals; the EEOC has deemed COVID-19 a “direct threat” under the ADA; and the mandatory vaccination is no broader than necessary in that the employer is not requiring employees to receive every possible vaccine known to humanity, but only that which addresses the direct threat of COVID19. However, employers must still provide a reasonable accommodation for those with religious objections and disabilities.
Exemptions for Religious Beliefs
Under Title VII, employees with a sincerely held religious belief, practice, or observance against vaccinations may not be coerced into receiving a vaccine. Some practices, like a holistic healthy lifestyle and belief a vaccine may do more harm than good, may be as rigorously followed as a spiritual practice but are not grounded in a religious belief and would not require an accommodation. Simply objecting to vaccinations in general will not meet legal requirements for an accommodation under federal law, but political beliefs or personal reasons for objecting to vaccines may be protected under state law. It is also likely some employers will see religious objections premised on an objection to injecting virus mRNA into the body, which is new technology used in two of the vaccines expected to be approved.
An employer who receives a religious objection from an employee can make a reasonable request for information to substantiate the employee does have a sincerely held religious belief; however, an employer should proceed cautiously and with guidance from an attorney due to the risk of a discrimination claim.
In cases where the lack of a vaccination poses a severe hardship for the business, a person’s religious beliefs may be overruled for the good of a larger group. One example of this could be when vaccinations are required to protect the health of at-risk individuals, such as the elderly in a nursing home. Employers in this situation should also seek guidance from an attorney before overruling a religious objection.
Accommodations Under the ADA
Under the ADA, employers are required to provide a reasonable accommodation to employees who are not able to get vaccinated due to a disability. For example, an employee who is sensitive to ingredients in a vaccine, such as egg proteins, may request not to be vaccinated. The courts have rendered split decisions on this issue in the past, so anticipating a ruling is problematic. If employers can offer a vaccine with an alternative ingredient composition that doesn’t cause an allergic reaction or other problematic side effect, they will be less likely to have the policy challenged. However, the impact of having new vaccines based on mRNA technology which has never been used before remains to be seen.
Employers are not required to provide reasonable accommodation if it would pose an undue hardship, such as causing substantial operational difficulties or expense to the employer. Establishing an undue hardship under the ADA is difficult and an employer should consult with an attorney before denying a reasonable accommodation on this basis.
Federal Agencies and Their Stance on COVID-19 Vaccines
There’s no way to predict how courts will rule if mandatory vaccination accommodation requests result in legal actions. Previous cases have involved vulnerable patients, but if no “sick patient” exists, assuming a hypothetical risk may not be looked upon favorably by the court. However, the EEOC has deemed COVID-19 a “direct threat” under the ADA, which opens the door to medical controls and inquiries previously considered too invasive.
The U.S. Centers for Disease Control and Prevention (CDC) recommends workplace vaccination policies, particularly for critical industries and those impacting national infrastructure.
And while the federal Occupational Safety and Health Administration (OSHA) has encouraged its own inspectors to get the vaccination, it has previously noted that whistle blower rights may protect employees from mandatory vaccination policies.
Employers should also consider how a mandatory vaccination policy will affect employee morale. Making it mandatory to require employees to vaccinate may lesson morale. Polls over the last few months have consistently shown Americans mistrust with the vaccine approval process being rushed and unknown side effects given the vaccines are so new and use new mRNA technology. Given the prevalence of the mistrust among Americans, employee morale should definitely be a consideration for employers.
Legal Liability for Requiring – And Not Requiring – Vaccinations
Employers also need to carefully consider potential legal liability in their state. If an employer requires employees to be vaccinated and an employee has adverse side effects, the employee could have a workers’ compensation claim. However, OSHA’s General Duty Clause requires employers to provide a safe and healthy workplace and to protect against known hazards that could result in death or serious harm. Employees could claim an employer’s failure to require employees to get a COVID-19 vaccine is putting the workplace at risk. Conversely, if an employee has a reasonable belief and can demonstrate the employee could have side effects from a vaccine or suffer serious injury or death may have OSHA protections for refusing a mandatory vaccination policy.
If that is not enough, employers also need to be aware of protected concerted activity if they have employees who are collectively discussing or protesting mandatory vaccination policies. Such activities could be protected union-related activity under the National Labor Relations Act even though the employer does not have any unions. Employers should proceed cautiously with any adverse action against such employees.
Unfortunately, there is no one size fits all approach when it comes to whether a COVID-19 vaccine should be mandated in the workplace. Employers need to consider their industry, the risk COVID-19 poses to the workplace, liability under state and federal law, and their workplace culture/effect on employee morale. Employers may want to consider simply encouraging employees to get vaccinated by offering to cover the cost without requiring it, which may protect against some of the pitfalls discussed above. Finally, it is possible states will require COVID-19 vaccinations for certain industries, such as healthcare facilities, like many already do for the flu vaccine, which would override employer policies on the issue. Employers should proceed cautiously when evaluating whether to require employees to vaccinate and may want to consult with employment law counsel for assistance.
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