Can Employers Require the Covid-19 Vaccination of Employees?
Published in the Oklahoma County Bar Association Briefcase
On December 14, 2020, healthcare workers across the United States became among the first people to receive the first COVID-19 vaccination.[i] The vaccine is believed to be a turning point in the Coronavirus Pandemic that has been ravaging the world for nearly a year now. The supply of vaccines is currently limited, which is why only healthcare workers and long-term care facility residents are getting vaccinated.[ii] However, the supply is expected to increase to the point that the vaccines will be open to the public in general.[iii] Because the vaccine is so new, the long-term effects are still unknown. Many people are worried about this and are thus feeling reluctant to get it even when it becomes available to the public. The more the vaccine supply becomes available, the more people will be wondering, “am I going to be required to get vaccinated?” In addition to these concerns, employers wanting to create a safe working environment will be asking a similar question: can I require my employees to be vaccinated? This article will explore current precedent and guidance for requiring vaccinations, exceptions, and other considerations employers should take into account before issuing a mandatory policy for vaccinations.
The United States has historical precedent for requiring mandatory vaccinations. In 1905, the United States Supreme Court upheld a state mandated compulsory vaccination program for smallpox in Jacobson v. Massachusetts.[iv] The Court ruled the program was constitutional; it did not violate the 14th Amendment right to liberty because it had a real and substantial relation to the protection of public safety.[v] Over a century later, and with a whole new group of Supreme Court Justices presiding, there is no guarantee the Supreme Court would rule the same way again. However, if the Supreme Court follows precedent set by Jacobson, individual states could mandate vaccinations if the legitimate goal was the protection of public safety. States, however, may be less likely to mandate vaccines given the political challenges they could face with their constituents. Employers, on the other hand, not facing such political challenges may be very eager to require their employees to be vaccinated.
There are many similarities to this pandemic and the seasonal flu, and a comparison can be drawn regarding the flu and its vaccination in the workplace. The Centers for Disease Control (CDC) recommends that everyone over the age of six months should get the flu vaccine.[vi] They also advise employers to encourage their employees to get the flu shot, even recommending that the employer host a flu vaccine clinic for the employees to attend with relative convenience.[vii] Additionally, the Equal Employment Opportunity Commission (EEOC) has issued its guidance for infectious diseases, like the flu, in the workplace. The EEOC advised flu vaccines may not be mandatory for all employees.[viii] This is because certain exceptions must be made for employees with disabilities and for religious accommodation requests.[ix] Furthermore, the United States Occupational Safety and Health Administration (“OSHA” has specifically stated its allowance for employers to mandate flu vaccinations, with the same exceptions being religious and medical disability.[x] With these guidelines in mind, many employers have required flu vaccines, and it has become a standard norm in many workplaces, especially in the healthcare field.[xi]
This theme endures for the new COVID-19 vaccination. There are no set rules against an employer requiring the employees to receive vaccinations. Thus, employers may require mandatory COVID-19 vaccination of employees. However, there will be certain exceptions that must be in place. The two main exceptions will be for employees with disabilities, as covered under the Americans with Disabilities Act, and employees who has a sincerely held religious belief(s), which would be violated by receiving a vaccination under Title VII of the Civil Rights Act. If an employee qualifies for one of these two exemptions, the employer will be required to make a reasonable accommodation.[xii] However, employers will have an exception to these exemptions when a reasonable accommodation is not possible.
II. Exemptions to Mandatory Employee Vaccinations
A. Americans with Disabilities Act
The Americans with Disabilities Act is a law designed to protect employees with disabilities from being discriminated against in the workplace. The law allows for these employees to request an exemption from a vaccine requirement imposed by their employers.[xiii] The employer can request additional information regarding the nature of the disability and the issue the vaccine may cause if administered to the employee.[xiv] The EEOC has provided guidance on how employees with disabilities should be treated regarding an employer’s mandatory COVID-19 vaccination. The EEOC states that an “employer must show that an 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.’”[xv] There are 4 factors that the employer should look for in determining if there is a direct threat resulting from the unvaccinated employee: duration of the risk, nature and severity of potential harm, likelihood that the harm will occur, and the imminence of the potential harm.[xvi] If it can be concluded that the unvaccinated employee poses a direct threat, that employee can only be excluded from the workplace if there is no way to provide a reasonable accommodation which would reduce the threat the employee poses.[xvii] A reasonable accommodation is one that does not impose undue hardship upon the employer.[xviii] Undue hardship is anything that results in more than a de minimis cost to the employer.[xix]
If the employer decides that no reasonable accommodation can be made, the employee can be excluded, but this does not mean automatic termination.[xx] The employee may be eligible to take leave under the Family Medical Leave Act or even under the employer’s employment and leave policies.[xxi] Prior to 2021, Congress had passed the Families First Coronavirus Response Act (FFCRA), which was the first nationwide act to require employers to provide their employees with extended paid leave time.[xxii] That legislation, however, saw its sunset on December 31, 2020.[xxiii] It has been replaced with the Consolidated Appropriations Act, which allows for employers to voluntarily continue the extended leave time provided through the FFCRA in an exchange for payroll tax credit.[xxiv] In addition to the changing laws, other applicable guidelines may be necessary for an employer to access the situation to determine the correct course of action.
B. Title VII of the Civil Rights Act
Title VII of the Civil Rights Act protects employees from mandatory vaccinations when the vaccination would violate their sincerely held religious belief. Like the ADA exemption, employees with a sincerely held religious belief can request to be excused from the mandatory vaccination policy imposed by their employer.[xxv] If the employer objects to the religion or the sincerity of the belief, the employer may inquire additional information to support the employee’s claim but should also be cautious about prying for too much information.[xxvi] The EEOC suggests that employers should ordinarily assume that the employee’s request is based on a sincerely held religious belief.[xxvii] The employer should be prepared to provide a reasonable accommodation to the employee with a sincerely held religious belief, so long as that accommodation does not cause undue hardship on the employer.[xxviii] If the employer is unable to provide a reasonable accommodation to the employee not able to receive a Covid-19 vaccination, the employer may exclude the employee from the workplace.[xxix] This does not mean that the employer may immediately resort to automatic termination of the employee.[xxx] Just as with the disability analysis, other guidelines may be necessary to assess the situation. The employee may also be eligible to take leave under the Family Medical Leave Act or the employer’s leave policies.
A religious accommodation is not to be taken lightly. With the recent shift in the Supreme Court, the Court has leaned towards the side of protecting religious liberties, and it is likely a trend that will continue. In November 2020, the Supreme Court ruled in Roman Catholic Diocese v. Cuomo against state imposed Covid-19 restrictions on religious gatherings in churches and synagogues.[xxxi] The state Covid restrictions allowed “essential” businesses to admit as many people as they wanted, but the churches were limited to no more than 10 people.[xxxii] These regulations could not be viewed as neutral because a church was being treated more harshly than a business that was deemed essential,[xxxiii] which included everything from bicycle repair shops to liquor stores.[xxxiv] In a per curium decision, the Court emphasized: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”[xxxv] “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”[xxxvi] This strong support for the First Amendment could mean that the Court and lower courts will side with employees requesting religious accommodations in mandatory vaccination programs, perhaps even when an undue hardship on the employer is argued.
III. Exception to the Exemptions
A. Undue Hardships
This area of inquiry can be considered the exception to the exceptions. If an employee has successfully received an exemption based on disability or religious belief, but it has been decided that no reasonable accommodation can be made without causing undue hardship on the employer, the employee can be terminated. As mentioned above, an undue hardship is anything that has more than a de minimis cost to the employer. De minimis is defined as something small or trivial.[xxxvii] The burden of proving a reasonable accommodation will be on the employee; the burden of proving the undue hardship will be on the employer.[xxxviii]
In each situation, the court will need to do a case-by-case analysis to determine any undue hardship.[xxxix] The Supreme Court has previously ruled against an airline employee seeking to always have Saturdays off due to his religious beliefs.[xl] The Court said that giving the employee Saturdays off was an undue hardship on the employer, who would now have to find a way to cover the Saturdays in which the employee was no longer working.[xli] Certain factors will point more towards undue hardship, such as requiring the employer to spend more money or the need to have other staff cover for the employee because the employee is not vaccinated.
B. Is Requiring the Vaccine a Job-Related or Business Necessity?
Employers with companies that have a lot of interaction with the public will have a stronger justification for requiring the vaccination than companies where employees can segregate easily or continue remote employment.[xlii] The most impacted industry in this pandemic has been that of healthcare workers. It will also be the industry that is going to continue to be in contact with ill patients, strengthening the justification that there is a business necessity for employers to require vaccinations. If employers in such a field can show that the employee’s lack of vaccination constitutes a substantial safety risk to the workplace and the patients and that an accommodation would cause an undue hardship upon the employer, there would be a case made for terminating the refusing employee, even if the refusal were for a religious belief or disability.[xliii]
Lower courts have taken a similar approach when dealing with the flu vaccine.[xliv] In Robinson v. Children’s Hospital Boston, a federal district court in Massachusetts allowed the termination of a hospital employee who was refusing the flu shot under a religious belief.[xlv] The hospital tried to find somewhere she could work without being around patients, but no spot could be secured.[xlvi] Allowing the employee to stay with her patients would have created an undue hardship on the employer, and thus termination was necessary because no reasonable accommodation could be made beyond what the hospital had already provided for the employee.[xlvii] Although the Supreme Court has already protected churches against the strict COVID restrictions, it has yet to be seen if the Court would side with the employee or the employer, especially in situations where the employee is around many patients and the employer will be arguing that a vaccination is a business necessity.
IV. Other Issues to Consider
A. FDA Approval
The Covid-19 vaccination has been rolled out to specific groups of people under an Emergency Use Authorization from the United States Food and Drug Administration.[xlviii] This, however, is not an official license, and getting the vaccine officially approved may not happen until well into the future. It may be advised to be cautious about requiring employees to get vaccines that have not been officially approved yet.[xlix] There could be legal risks associated with the lack of official FDA approval.[l] Until complete approval has been achieved by the FDA, employers are simply advised to encourage employees to get the vaccination, rather than requiring them to do so.[li]
Commentary on this topic suggests that if the employer is going to require mandatory Covid-19 vaccinations as a condition of employment, then it is “best practice” and “in the employer’s best interest” that the employer pay all costs associated with getting the employee vaccinated.[lii] It is also extremely important for employers to apply their mandatory vaccinations in a uniform manner, so as not to risk appearing discriminatory, ultimately resulting in lawsuits brought against the employer.[liii]
C. Title II of the Genetic Information Nondiscrimination Act
Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in employment decisions. The EEOC made it clear that requiring employees to receive the vaccine or asking for proof of the vaccine does not result in the acquisition or disclosure of genetic information as prohibited by GINA.[liv] Because some of the COVID-19 vaccines use mRNA technology, there is a question about whether that modifies the genes and therefore violates GINA.[lv] However, the CDC has said that the mRNA does not interact with the DNA in any way.[lvi] Therefore, there is no violation of GINA by requiring employees to get vaccinated.[lvii]
As the Covid-19 vaccinations slowly become more available, the laws on mandatory vaccinations become very relevant. Americans are less likely to see state mandated vaccinations, and instead are more likely to see a mandate from their employers. Employers can mandate the Covid-19 vaccination of their employees. However, they will be subjected to the laws of the Americans with Disabilities Act and Title VII of the Civil Rights Act, which will mean that exemptions will be required for those employees with disabilities and for those employees with sincerely held religious beliefs against vaccinations. The employer will need to make reasonable accommodations for the employee to remain unvaccinated. Reasonable accommodations must not cause an undue hardship on the employer. In some fields, it will be very difficult to provide a reasonable accommodation for that employee. Termination may be more justifiable. However, for employers who can have the unvaccinated employee segregated from the other employees, possibly through remote work or in an area located away from the other staff, termination is not going to be as justifiable. The analysis will always require a balancing of the employee’s rights with the employer’s desire to create a safe workspace.
There is also the option that employers simply strongly encourage or incentivize employees to get vaccinated, rather than making it mandatory. This choice provides an alternative to dealing with the exemptions and reasonable accommodations and may be the best plan while the vaccine is currently lacking official FDA approval. Either way, employers will be encouraged to work with their employees in this difficult time to make the reasonable accommodations necessary to ensure that everyone stays safe, feels secure in their rights, and maintains a happy working environment, in person or remotely.
[i] Meet Some of the First Americans to get the Coronavirus Vaccine, NBC News, https://www.nbcnews.com/news/us-news/meet-some-first-americans-get-coronavirus-vaccine-n1251190 (last visited December 15, 2020).
[ii] When Vaccine is Limited, Who Gets Vaccinated First?, CDC, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations.html (last visited December 15, 2020).
[iv] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[vi] Information for Health Care Professionals 2020-2021 Flu Season, CDC, https://www.cdc.gov/flu/season/health-care-professionals.htm#:~:text=CDC%20recommends%20annual%20influenza%20vaccination,any%20one%20vaccine%20over%20another (last visited December 29, 2020).
[vii] Promoting Vaccination in the Workplace, CDC, https://www.cdc.gov/flu/business/promoting-vaccines-workplace.htm (last visited December 29, 2020).
[viii] EEOC Opposes Mandatory Flu Shots for Workers, SHRM, https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeoc-opposes-mandatory-flu-shots.aspx (last visited December 15, 2020).
[x] Occupational Safety and Health Administration, United States Department of Labor, https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09 (last visited December 15, 2020).
[xi] Employers Should Prepare for COVID-19 Vaccine in the Workplace, Phillips Murrah, https://phillipsmurrah.com/2020/12/employers-should-prepare-for-covid-19-vaccine-in-the-workplace/ (last visited December 15, 2020) (hereinafter Employers Should Prepare).
[xii] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= (last visited December 17, 2020) (hereinafter EEOC Guidance).
[xiii] When Employers Can Require COVID-19 Vaccinations, SHRM, https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-mandatory-vaccinations.aspx (last visited December 15, 2020) (hereinafter When Employers Can Require Covid-19 Vaccinations).
[xv] EEOC Guidance, supra note xii, (quoting 29 C.F.R. 1630.2(r)).
[xix] Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).
[xx] EEOC Guidance, supra note xii, (quoting 29 C.F.R. 1630.2(r)).
[xxii] COVID-19 Paid Leave in 2021: The Impact of New Federal Relief Bill on Employers, Ward and Smith, https://www.wardandsmith.com/articles/covid-19-paid-leave-in-2021-the-impact-of-new-federal-relief-bill-on-employers (last visited January 8, 2021).
[xxv] When Employers Can Require COVID-19 Vaccinations, supra note xiii.
[xxvii] EEOC Guidance, supra note xii.
[xxxi] Roman Catholic Diocese v. Cuomo, 208 L. Ed. 2d 206 (2020).
[xxxii] Id. at 207.
[xxxiii] Id. at 208.
[xxxiv] Id. at 211.
[xxxv] Id. at 209-210 (quoting Elrod v. Burns, 427 U. S. 347, 373 (1976)).
[xxxvi] Id. at 210.
[xxxvii] Black's Law Dictionary (2nd Ed. Online).
[xxxviii] US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).
[xxxix] Id. at 395.
[xl] TWA v. Hardison, 432 U.S. 63 (1977).
[xli] Id. at 84.
[xlii] When Employers Can Require COVID-19 Vaccinations, supra note xiii.
[xliii] Employers Should Prepare, supra note xi.
[xlv] Robinson v. Children’s Hospital Boston, 2016 U.S. Dist. LEXIS 46024 (D. Mass 2016). See also, Court Says Mandatory Flu Vaccine for Hospital Worker Does Not Violate Title VII, Lexology, https://www.lexology.com/library/detail.aspx?g=1c5c50f0-e0a6-45d8-9142-609143e0f876 (last visited December 28, 2020).
[xlviii] 8 Things to Know about the U.S. COVID-19 Vaccination Program, CDC, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/8-things.html (last visited December 15, 2020).
[xlix] Yes, some Americans may be required to get a COVID-19 vaccine but not by the federal government, USA Today, https://www.usatoday.com/story/news/nation/2020/12/05/covid-vaccine-required-government-employers/3797885001/ (last visited December 15, 2020).
[li] Employers Should Prepare, supra note xi.
[liv] EEOC Guidance, supra note xii.