As COVID-19 vaccines become available, many employers are now asking if they can require employees to get vaccinated, and what they can do if an employee refuses to get vaccinated.
The Equal Employment Opportunity Commission (EEOC) prepared guidance on December 16, 2020.
Employers may encourage or possibly even require COVID-19 vaccinations for employees. However, the mandated employer vaccination policy must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws.
Now, this is where employer mandates get tricky and very complex. An employee with a religious objection or disability may be able to obtain employer accommodations.
It must be noted that if an employee refuses to obtain a vaccine, an employer must evaluate an employee’s objection, particularly if an employer is mandating that employees receive the COVID-19 vaccine.
Under ADA guidelines, an employer may have a policy in place indicating that employees, in general, may not pose a direct threat to the health or safety of other employees in the workplace.
This is where an employer’s vaccine mandate gets murky. If a mandated vaccination requirement singles out a particular employee with a disability, the employer must show that the unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
According to the EEOC, an employer should evaluate four (4) factors in order to determine whether a direct threat exists:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- The imminence of the potential harm.
If an employee who cannot (or refuses to) be vaccinated poses a direct threat to other employees, the employer must consider whether a reasonable accommodation can be made, which may include allowing the employee to work remotely or taking a leave of absence.
In order to determine whether a reasonable accommodation can be made to an employee, an employer should review the following:
- The employee’s job functions.
- Whether there is an alternative job that the employee could do that would make vaccination less critical.
- How important it is to the employer’s operations that the employee be vaccinated.
Under Title VII, an employer is required to accommodate an employee’s sincerely held religious belief, practice, or observance unless such an accommodation would cause undue hardship to the employer.
The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. According to the EEOC, the employer should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief.
Depending on the facts and circumstances, if an employee cannot get vaccinated as a result of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could potentially prohibit the employee from physically entering the workplace. However, this does not mean that an employee can be automatically terminated. Before an employee is prohibited from entering the workforce, an employer should review all legal options available.
As a matter of policy, if an employer does require their employees to obtain a COVID-19 vaccine, the employer must develop a written policy.
In addition, an employee may have a general objection to receiving a COVID-19 vaccination that does not require a reasonable accommodation. An employee who refuses to obtain a mandated vaccine should never be automatically terminated, which may violate other state or federal law. If a significant portion of employees refuse to comply with the vaccine mandate, the employer will be put in a very difficult position of either adhering to the mandate and terminating all of those employees, or deviating from the mandate for certain employees, which increases the risk of discrimination claims.
Before implementing employee mandates that could lead to very difficult decisions, employers may want to:
- Develop vaccination education campaigns.
- Make obtaining the vaccine as easy as possible for employees.
- Cover any costs that might be associated with getting the vaccine.
- Provide incentives to employees who get vaccinated.
- Provide paid time off for employees to get the vaccine and recover from any potential side effects.
Before any type of employer vaccine mandates are implemented, it would be extremely wise for an employer to have their mandated vaccine policy reviewed by their legal counsel.
Stuart J. Oberman, Esq.
Stuart J. Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 30 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company.
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