You Absolutely Can Require Your Employees to be Vaccinated; Unless…
The EEOC’s position on this issue is pretty clear: Federal law does not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.1.
Recent judicial rulings have agreed. As the judge in the recent Houston Methodist Hospital case held, the hospital is in the business of saving lives without infecting patients with the virus, and as such, an employer that mandates vaccines, regardless of whether it is in a safety-sensitive industry, may intend to demonstrate that it cares for all of its employees and wants to ensure a safe workplace.
AMERICAN’S WITH DISABILITIES ACT: The ADA will require an employer to provide reasonable accommodations to employees who object to being vaccinated due to a unless providing that accommodation would pose an undue hardship on the operation of the employer’s business or pose a direct threat to the employee or others.
If the requirement that all employees be vaccinated tends to screen out a worker with a disability, the employer must show that unvaccinated employees would pose a direct threat in order to take action against the employee. The EEOC defines a "direct threat" as a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation." The EEOC has indicated that employers should evaluate four factors 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 be vaccinated poses a direct threat to the workplace, the employer should consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
It is critical that Managers and supervisors who are most likely to communicate with employees about compliance with the employer's vaccination requirement and reasonable accommodations know how to recognize an accommodation request from an employee and to whom the request should be referred. Making a misstep in this process often leads to litigation.
TITLE VII OF THE CIVIL RIGHTS ACT OF1964: Title VII requires an employer to accommodate an employee’s sincerely held religious beliefs unless it would cause an undue hardship on the business. Courts have said that an "undue hardship" is created by an accommodation that has more than a "de minimis," or very small, cost or burden on the employer. This is a much lesser standard than that required by the ADA.
The definition of religion is broad and protects religious beliefs and practices other than those generally recognized by most employers. According to the EEOC, employers "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief," "However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information."
If an employee refuses to be vaccinated because of a sincerely held religious belief, and the employer cannot make a reasonable accommodation without incurring more than a de minimis cost or burden, the employer might be entitled to exclude the employee from physically entering the workplace.
Employers may also not apply a vaccination mandate to employees in a way that has a disparate impact on employees because of their disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason for doing so.
Further, if an objecting employee is represented by a union, the employer may need to bargain and reach an agreement with the union before mandating vaccines.
On July 29 the U.S. Department of Justice issued a Memorandum confirming that the “emergency use” status of the COVID vaccine does not prohibit employers, universities or other entities from requiring its use. On the same day President Biden ordered that most federal workers and contractors sign forms attesting that they have been vaccinated or else comply with new rules requiring masking, weekly testing, distance and other protective measures.
Every day the news announces that more large employers , are implementing vaccine mandates and in June a U.S. Federal Judge in Houston sided with a Houston hospital that required its staff to be vaccinated and eventually fired most of those who refused. In reference to the lead Plaintiff, the judge said:
"Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else. If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker's behavior in exchange for remuneration. That is all part of the bargain,"
MINIMIZING RISK: Employers who plan to require their employees to get a COVID-19 vaccine or to produce proof that they have been vaccinated should develop a written policy. The policy should, at the least, outline the steps that the employer will go through in publishing the plan, addressing employee objections and requests for accommodation and, eventually, how those who refuse and are not entitled to an accommodation will be handled. If a significant portion of the workforce refuses to comply, the employer may be put in the untenable position of either withdrawing the vaccine mandate or terminating a large portion of their workforce.
Rather than run this risk, some employers are choosing to inform and incentivize their employees. The CDC has provided a great educational resource page for employers. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/toolkits/essential-workers.html
The EEOC has taken the position that employers may offer employees an incentive of almost any type to provide proof that the employee has been vaccinated on their own. However, if the employer or a third party contracted to the employer administers the vaccine, the employer may only offer a very small, de minimis, incentive to the employees to be vaccinated. The rationale for this bizarre distinction is that administering the vaccine requires prescreening medical questions that are prohibited under the ADA unless the medical questions are voluntary. And, if the incentive is too substantial, then answering the medical screening questions would not be considered voluntary. So, if you are going to offer your employees an incentive to be vaccinated by your company or a third party contracted by your company, keep it very small-think a drink coozy or $5 gift card.
CONFIDENTIALITY: Although the EEOC has taken the position that asking an employee if they have been vaccinated is not a prohibited medical inquiry under the ADA, the answer provided by the employee is nonetheless considered medical information that the employer must maintain in a confidential manner. So, unless and until we receive further guidance, employers run a risk of violating the ADA if they require employees to wear a badge, sticker or otherwise show publicly whether or not they have been vaccinated. (Requiring workers who have not been vaccinated to wear a mask would not constitute such a public declaration because persons who have been vaccinated can choose to continue to wear a mask as well.)