As has been headline fodder for days, COVID-19 vaccines have been approved and are on the way to the general public. This is big news for employers. Over the next three or four months, many of your employees and contractors will become eligible to receive vaccinations. And this begs the question: should you—and can you—require your workforce to be vaccinated against the novel coronavirus.
Subject to the exceptions discussed below, Michelman & Robinson, LLP has taken the position that the answer to both queries is a resounding “yes.” We believe that getting vaccinated should become an essential term and condition for all employment—this given the overwhelming public health benefit and business continuity that is sure to come if and when employees nationwide are immunized against COVID-19.
Notably, requiring employees to vaccinate is not a new concept. Hospitals have mandated flu shots for decades, and multinational companies require employees traveling overseas to obtain necessary vaccinations appropriate for their destinations.
OSHA and the CDC
The Occupational Safety and Health Act’s “general duty clause” compels every employer to provide employees a place of employment free from “recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees." Under some state laws, employers may also owe a duty of care to employees, vendors and clients who enter the workplace and business.
Clearly, it would be hard to argue that COVID-19 is not a dangerous recognized hazard. Accordingly, the Centers for Disease Control and Prevention recommends people be vaccinated against COVID-19, as inoculations will protect not just the recipients, but also those around them, especially individuals at increased risk for severe illness.
In our view, not following the CDC’s recommendation and allowing unvaccinated workers to shed the novel coronavirus in the workplace is conceptually equivalent to knowingly permitting a dangerous hazard to exist unchecked in workplace. Hence, our advocacy for COVID-19 vaccines. And while OSHA has yet to issue guidance regarding these immunizations (though such guidance is likely under the Biden administration), it has promoted vaccinations to prevent the spread of the flu in the workplace. To be sure, there is little reason to believe that OSHA’s positive view of flu vaccinations deemed safe by the CDC and the Food and Drug Administration will be any different when it comes time to issue guidance regarding COVID-19 inoculations.
The ADA and EEOC
The Americans With Disabilities Act prohibits medical examinations unless they are job-related and consistent with business necessity. With that as background, the U.S. Equal Employment Opportunity Commission has opined that testing for COVID-19 and the administration of the vaccine by an employer (or retained vendor) are not restricted by the ADA. In fact, the EEOC has made clear that employers following CDC guidelines while administering COVID-19 tests will not run afoul of ADA standards. Likewise, the EEOC has confirmed that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not an unlawful disability-related inquiry.
Employee Disability Precludes Vaccination
In the event an employee states that he or she has a disability (severe allergies, for example) that precludes the receipt of a COVID-19 vaccination, the ADA requires the employer to conduct an individualized assessment to determine if that unvaccinated employee poses a direct threat to the workplace. If so, the ADA mandates that employers determine whether a reasonable accommodation can be provided to reduce the direct threat without causing undue hardship to the employer. For instance, can the employee be isolated from other employees in an office or can they work from home. It is important to emphasize that an employer is not required to provide a reasonable accommodation if none is available.
Religious Objections to Vaccination
Beyond the ADA, Title VII of the Civil Rights Act provides another basis upon which an employee can seek to avoid immunization. According to Title VII, a reasonable accommodation must be made for employees whose sincerely held religious beliefs, practices or observances prevent them from taking the COVID-19 vaccine.
Certainly, a religious exemption to the vaccine is much easier for employees to establish than a medical exemption under the ADA, though this type of exemption is less demanding on the employer, who is not obligated to provide an accommodation if doing so poses an undue hardship, which requires even less of a showing under Title VII. Parenthetically, accommodations may include requiring unvaccinated employees to continue to wear masks or other personal protective equipment (PPE) even after the rest of the workforce returns to normal.
If an employer decides to make an “undue hardship” argument, there is a compelling argument that a requirement to vaccinate may override claims of religious freedom. In the decades-old case of Prince v. Commonwealth of Massachusetts, the U.S. Supreme Court stated, “The right to practice religion freely does not include liberty to expose the community … to communicable disease.” More recently, in Employment Division, Department of Human Resources of Oregon, et al. v. Smith, Justice Antonin Scalia came to a similar conclusion that laws advancing civic obligations such as compulsory vaccination may trump rights of religion. States like California and New York have followed the high court’s lead and eliminated religious vaccine exemptions.
What’s an Employer to Do?
As a practical matter, assuming you implement a COVID-19 vaccine mandate, questions arise as to how you should address that small cohort of employees who may be vehement anti-vaxxers, have a disability that prohibits vaccination, or allege that their religious beliefs are inconsistent with immunization. The clearest way of dealing with anti-vaxxers in an at-will workforce is to bar access to the workplace to these employees, a decision that may prove challenging and frustrating, particularly when the employee is highly valued or has a unique skill set. Of note, in a unionized workplace, terminating an employee for failure to vaccinate may be problematic, though where a union contract contains an existing mandatory flu vaccine provision (as do many health care industry agreements), the employer may be able to avoid bargaining over disciplinary action. Otherwise, absent a law requiring vaccination, a vaccine mandate would likely give rise to a duty to bargain with a given union prior to implementation (once more, this assumes the workplace is unionized).
Outside the union context and in the case of (1) an employee’s reasonable belief that he or she has a medical condition that could cause a real danger of serious illness or death in the event of inoculation, or (2) an employee who maintains privately held religious beliefs that disallow vaccines, reasonable accommodations must be made unless—as referenced above—they create an undue hardship for you. Again, such accommodations may include requiring the use of PPE or even telecommuting when possible. Otherwise, just cause may exist for the unwilling employee’s termination.
Of course, M&R’s employment team is here to answer any vaccine- or other COVID-19-related questions you may have.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.