By Barbara F. Dunn & Cristina Alma McNeiley
On December 14, 2020, the first COVID-19 vaccines were administered in the United States, and the official vaccination roll-out began. As the roll-out continues, employers around the United States are considering whether or not they can require their employees to get vaccinated. Overall, given the severity of COVID-19, many employers have a strong case for requiring employee vaccinations, so long as their vaccination policies abide by certain exceptions.
As COVID-19 vaccinations are becoming more-readily available, many employers are left with one crucial question: Can employers in the United States require that their employees get a COVID-19 vaccination when they become available? State and federal courts, as well as federal agencies that deal with employment issues – the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) – have not yet been confronted with this issue as it relates to COVID-19. Nevertheless, in its prior guidance on pandemic preparedness, the EEOC recommended generally that employers should encourage employees to get the influenza vaccine, not mandate it. However, given the severity of COVID-19, employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace.
Reasonable Accommodations for Vaccines
At the federal level, there are no laws or regulations that prohibit mandatory vaccination policies. While employers likely can require employees to get vaccinated before returning to work through business necessity, there are significant exceptions for potential concerns related to any disability the employee may have and for religious beliefs held by employees that prohibit vaccinations. The EEOC has stated that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine. An employer is required to provide a reasonable accommodation for an employee’s disability unless the employer can establish “undue hardship.” Given the number of people infected and who have died, it should not be too difficult for an employer to show that mandating a COVID-19 vaccination would ensure the health and safety of its employees is maintained at all times.
Employees also may be excused from the vaccine mandate under the religious accommodation provision of Title VII of the Civil Rights Act of 1964. Under this provision, an employee may be exempted if taking the vaccine would violate his or her sincerely held religious beliefs, practices, or observances. Although an employer also is required to reasonably accommodate an employee’s sincerely held religious beliefs, the applicable de minimis standard is lower than the ADA standard. Given the direct threat of health and safety to employees, employers likely will be able to meet this standard. Generally, it is important for employers to remember that information regarding mandatory vaccinations and the EEOC’s position on mandatory COVID-19 vaccinations are fluid and are highly likely to be changed and/or updated on an ongoing basis as more medical information becomes available regarding the vaccinations and as more people are eligible for the vaccines.
In general, the COVID-19 pandemic has brought on challenging times for employers and the country as a whole. If vaccination requirements do become more common, both employers and their employees will have to find ways to balance personal concerns with public safety. Overall, employers are encouraged to give thoughtful consideration as to what works best within their specific work environment. Please consider communicating with your legal counsel to determine what is best for your specific organization.
Barbara F. Dunn is a Partner with the Associations and Foundations Practice Group at Barnes & Thornburg, where she concentrates her practice in association law and meetings, travel, and hospitality law. She can be reached at 312.214.4837 or barbara.dunn@btlaw.com. Cristina Alma McNeiley is an Associate with Barnes & Thornburg and can be reached at 312.214.2104 or at cristina.mcneiley@btlaw.com.