By Brian Farrington and Casey Erick
It sometimes seems that an eternity has passed since early 2020, when COVID-19 began to affect our lives. However, in medical terms, the development of several highly effective vaccines in less than a year is astonishingly rapid. It now looks like we are approaching the end of what has been a long national and international nightmare.
Can Employers Require the COVID-19 Vaccination?
Despite the promise brought by the vaccines, media reports suggest that a substantial number of people may be reluctant to take a COVID-19 shot. In addition to the usual anti-vaxxers, many more people have expressed doubt about the vaccine's efficacy — for political or social reasons. Whether the federal government or individual states can require citizens in general to take a vaccine is a contentious topic.
But a more immediate and related question concerns whether some employers will want to require their employees to be vaccinated as a condition of continued employment. Can they legally do so?
Answers to this question must take into account federal and state statutes as well as common-law questions such as privacy rights and bodily integrity. The statutory inquiry must begin with the Americans With Disabilities Act (the ADA).
The Americans With Disabilities Act (ADA)
The ADA is enforced by the Equal Employment Opportunity Commission (EEOC). In 2009 the EEOC published on its website a document called Pandemic Preparedness in the Workplace and the Americans with Disabilities Act in response to the perceived threat of an influenza pandemic. In March 2020, this document was updated to address Covid-19.
The EEOC summarizes the effect of the ADA on pandemic preparedness this way:
The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. First, the ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
So in general, under the ADA the answer to the question whether employers can require their employees to be vaccinated is yes. Many employers in healthcare and other industries, such as food preparation, already require certain vaccinations, and the courts have generally upheld those types of requirements. In these situations, it’s easy to see how unvaccinated employees might pose a “direct threat” to health and safety, and it will be difficult for such employees to justify an exemption from a vaccination requirement.
In the hospital context, the direct threat is easily understood: healthcare workers are exposed to COVID-19 and can expose others. In other settings, however, employees might argue that the virus’s threat is not imminent. The EEOC, though, has flatly stated that COVID-19 is a direct threat . This opinion is not binding on the courts, but we expect most courts to follow this guidance.
Excuse from the Requirement
What if employees object to receiving the vaccinations — can they demand accommodation in the form of being excused from the requirement?
Religious and Medical Objections
According to new EEOC guidance just released on December 16, 2020, “the ADA allows an employer to have a qualification standard that includes ‘a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.’ However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the 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." 29 C.F.R. 1630.2(r).
Medical exemptions from a mandatory vaccination policy, therefore, would have to be based on medical evidence that the employee in question has a disability which would make the employee unusually jeopardized by being vaccinated. Such an exemption would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Mere sensitivity to vaccines, or psychological effects, may or may not constitute a disability. Even if such conditions qualify as disabilities, the employer would likely still argue that the proposed exemption is an undue hardship because it poses a direct threat and so cannot be granted.
The EEOC says that “Employers should conduct an individualized assessment of four factors in determining 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; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” Clearly, this sort of individualized assessment of whether a given employee poses a direct threat will be complicated.
Note also that even if an employee poses a direct threat under this analysis, the employer can’t just terminate the employee. The employer still has to explore whether there are accommodations that can reduce or eliminate the threat.
Employees claiming religious objections will have to show that they have a “sincerely held religious belief.” Personal anti-vaccination positions generally will not support the legal requirement of establishing a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy. Even if employees can demonstrate a sincerely held religious belief as the basis for an accommodation request that they be exempted from a mandatory vaccination policy, however, their employer may well be able to deny such a request based on the direct threat unvaccinated employees might pose to the employer, other employees, and/or third parties.
It will generally be more problematic for employers to fight medical accommodations than religious accommodations because the standard for “undue hardship” is more stringent under the ADA than under Title VII, which addresses religion.
Interestingly, many observers believe that the Occupational Safety and Health Administration (OSHA) has generally abstained from investigating, finding violations, and imposing penalties on employers based on employee complaints that they were not meeting their duty to provide a safe workplace in terms of Covid-19 prevention. It remains to be seen whether OSHA will take a more aggressive enforcement position under the Biden administration. If it does, it is likely to be more, rather than less, supportive of mandatory vaccinations.