It is becoming increasingly apparent that this pandemic may not be significantly slowed down by anything less than a vaccine. Yet, public opinion polls show that many Americans, if offered a vaccine, will not take it. So, how should employers prepare for a workplace in which many employees refuse to be vaccinated? Can and should employers require as a condition of employment that all employees be vaccinated? What objections to vaccinations are valid and how can an employer accommodate such objections.
Generally, employers may require mandatory vaccination subject to limited exceptions under Title VII and/or the Americans with Disabilities Act (“ADA”). Even then, the Occupational Safety and Health Administration (“OSHA”) has taken a position that employers can require employees to take influenza vaccines, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.” OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of a serious illness or death (such as a serious reaction to the vaccine) may be protected under OSHA Section 11(c) …pertaining to whistleblower rights.” Given this, employers may be more effective by emphasizing the benefits of the COVID-19 vaccination to allay employees’ fears rather than merely ordering they be vaccinated.
Employees may object to mandatory vaccinations for religious reasons under Title VII. The employee must have a “sincerely-held” religious belief opposing vaccinations. An employee’s personal or ethical objection to vaccinations is not sufficient. For example, in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, the court affirmed the dismissal of a Title VII claim finding that an employee’s opposition to vaccines was a personal belief that did not “occupy a place in his life similar to that occupied by a more traditional faith.” If the employee asserts a religious objection, employers should meet with the employee and determine whether this belief is “sincerely-held” religious belief or a personal belief. If an employee can establish a “sincerely-held” religious belief against vaccination, the company must consider whether the accommodation request, i.e. not being vaccinated, poses an “undue hardship” to it. That “undue hardship” consideration includes the harm to the employer, its employees, and third parties. At least one court has found that an employer can show “undue hardship” if it is forced to allow employees to forgo mandatory vaccinations. That case was, however, in the context of a healthcare setting. See: Robinson v. Children’s Hospital Boston, 2016 BL 107523, 2016 WL 1337255 (D. Mass. Apr. 5, 2016). Obviously, there are different concerns if the employer is a health care provider and the employee will be in close proximity to patients, as opposed to merely co-workers or the general public.
Similar to the religious accommodation, an employee requesting not to be vaccinated for medical reasons must establish that they have a covered disability. In the vaccination context, there is a split in the federal appeals courts as to whether sensitivity to vaccinations constitutes a covered disability. Our federal appeals court, the U.S. Court of Appeals for the Eighth Circuit, has held that alleged chemical sensitivities and allergies do not constitute a “disability” under the Americans With Disabilities Act (“ADA”). Assuming an employee requesting an accommodation is covered by the ADA, the “undue hardship” standard under the ADA is harder to demonstrate than the standard under Title VII for religious accommodation. Under the standard established by the Supreme Court in US Airways, Inc. v. Barnett, to establish an undue hardship in the context of mandatory vaccinations, an employer generally “must show special (typically case-specific) circumstances demonstrating undue hardship.” However, employers may be able to circumvent this problem by offering the employee the ability to take an alternative vaccine that does not contain an ingredient that could trigger an employee’s medical condition (e.g., a vaccine that does not contain any egg, swine, or fetal cell products).
In March 2020, the EEOC issued COVID-19 Guidance specifically addressing whether employers could, consistent with the ADA and Title VII, compel all employees to take an influenza shot. The EEOC concluded that the Company need not grant a religious accommodation that would result in more than a “de minimis” cost to the operation of the employer’s business. The EEOC has advised that it is a best practice to simply encourage employees to take the vaccine rather than to mandate it. Even if the employer is not a health care provider, the EEOC seems to have taken a more “employer-friendly” view, as of late. Since the onset of the current pandemic, the EEOC has acknowledged that COVID-19 currently meets the ADA’s “direct threat standard,” which permits more extensive medical inquiries and controls in the workplace than typically allowed under the ADA. A “direct threat” finding means that having someone with COVID-19 in the workplace poses a “significant risk of substantial harm” to others. Such a finding permits employers to implement medical testing and other screening measures the ADA would usually prohibit. Therefore, a stronger case can be made that allowing unvaccinated employees to work may be an “undue hardship.”
After educating employees on the safety and efficacy of a COVID-19 vaccine, employers should attempt to accommodate sincerely-held religious objections or medical objections under Title VII and/or the ADA. This may include a discussion of whether the company can exempt the employee from the policy entirely or transfer the employee to another position temporarily (until the pandemic threat ends or as determined by local health officials). Employers should not terminate an employee who refuses a COVID-19 vaccination without first engaging in an interactive process if the employee is objecting for health and/or religious reasons. If the possible accommodation (i.e., exempting an employee from a vaccination requirement) involves more than a “de minimis” cost to the company or constitutes an “undue burden,” the employer need not accommodate and may require that the employee be vaccinated as a condition of employment.
Fraser Stryker’s Labor and Employment Attorneys are available to answer questions and assist clients in preparation for, or response to, any legal issues related to COVID-19 and employees. Please reach out to us at 402.341.6000 for further assistance.
Author: Patrick J. Barrett
This article has been prepared for general information purposes and (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Always seek professional counsel prior to taking action.