The COVID-19 pandemic continues to make an impact on businesses. In fact, over the past nine months, the pandemic has fundamentally changed the way business is conducted in the U.S. With state governments ordering social distancing, remote work, and limitations on the capacity of various facilities, many workplaces have not been the same since March. Now that a vaccine for the highly contagious virus appears to be imminent, some companies are looking to it as a hope to return their employees to the physical workplace and get back to business as usual. Employers in health care, retail, and other public-facing industries will be particularly interested in requiring the vaccine. But that begs the question: once a vaccine is available, can an employer require employees to get vaccinated?
EEOC guidelines
There are very few legal limitations on private employers’ ability to require their employees to receive vaccinations. The only relevant federal guidance on the topic, meanwhile, suggests that employers will be allowed to do so. The EEOC first issued that guidance in the midst of the 2009 H1-N1 outbreak. Back then, it said that during a pandemic, employers can require mandatory influenza vaccines, with a few exceptions discussed below. Notably, the guidance also said that while employers can mandate vaccinations, the EEOC recommends that employers encourage them of their employers rather than demanding them.
That H1-N1-inspired guidance was updated and reissued in March 2020 to make its various provisions applicable to the COVID-19 pandemic. Given that a COVID-19 vaccine does not yet exist, the guidance does not directly address employer-mandated vaccination. The H1-N1 approach, however, is likely serve as the framework for COVID-19 vaccinations when made available.
Exceptions to mandate
Civil rights law creates two main potential exceptions to employer-mandated vaccination programs. First, the Americans with Disabilities Act (ADA), which regulates employers with 15 or more employees and prohibits discrimination against persons with disabilities, could allow employees with certain medical conditions to avoid vaccination. If the vaccine would impact an employee’s existing health conditions, that employee may be able to request, instead, that they be given a “reasonable accommodation” allowing them to perform their job without vaccination. To determine whether a reasonable accommodation is required, the employer must ask: (1) if there is a change in the work environment that would allow the individual with a disability to have an equal opportunity for the job, without creating an undue hardship on the employer; and (2) if accommodating the employee (by not being vaccinated) has an impact on the employees’ ability to perform their job. If an individual with the accommodation (no vaccine) would pose a direct threat, or 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, then the individual would not be protected by nondiscrimination clauses of the ADA. An employer can decline the request for an accommodation if it poses an undue hardship to the employer’s business.
Assessments of whether the employee poses a direct threat must be based on objective facts, not perceived or irrational fears about the specific disability. The CDC and public health authorities have indicated that COVID-19 pandemic meets the direct threat standard. Employers will have to make the assessment of whether the employee’s requested accommodation can be accommodated.
Under Title VII of the Civil Rights Act of 1964, an objection may also be made by employees based on religious objections. For employees with sincerely held religious beliefs that prevent them from taking vaccines, employers must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. Undue hardship under Title VII would have to be “more than de minimus cost” to the operation of the employer’s business. Keep in mind, ethical, medical or other reasons for objections are not permitted as exceptions under the religious exemption.
While the ADA and Title VII apply to employers with 15 or more employees, state civil rights laws, such as the Michigan Persons with Disabilities Civil Rights Act and Elliott-Larsen civil rights acts applies to employers with one or more employee. The state civil rights laws mirror federal civil rights laws, and include protections for religion and disability.
Regardless of the above, employers would be wise to wait until the safety and proof of effectiveness of the vaccine is widely available. While a vaccine mandate may be lawful, the best practice for employers eager to get their workplace back to normal may just be to encourage vaccination, which is supported by the EEOC guidelines, and refrain from an actual mandate. Employees who opt not to get vaccinated may be required to continue mask wearing and other PPE precautions to which many have become accustomed.
