With Covid-19 vaccinations underway, employers may be concerned about implementing a vaccination policy. While it will likely be months before a vaccine is available to the vast majority of Americans, the question still arises:
Can you have a mandatory vaccination policy? The answer is likely yes, under the recent EEOC guidance. But the question employers are most interested in, should you mandate it? This is a business decision you will have to make. What you do as an employer will be factually dependent on, for example, your type of business, local ordinances, changing regulations, your employee base, and your customer base.
Subject to certain state and federal laws, we can expect employers will have the ability to require vaccinations. Just recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its Covid-19 guidance to address this specific issue. While the EEOC guidance does not directly state that mandatory vaccination policies are lawful, it does answer a series of questions predicated on the assumption that an employer has adopted a mandatory policy, focusing on how an employer should respond to requests from employees who cannot or do not wish to obtain a vaccination.
Under the EEOC guidance, employers may require employees receive a COVID-19 vaccine before reporting to work, but any such policy must meet certain requirements under federal anti-discrimination laws. For example, employers may be obligated to provide accommodations to employees with disabilities that may prevent them from obtaining a vaccination and to employees with religious objections to vaccines.
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to any employee whose disability prevents them from being vaccinated, unless doing so is an “undue hardship,” defined as significant difficulty or expense. Pursuant to the updated EEOC guidance, an employer may exclude an employee with a covered disability when the “unvaccinated employee would pose a direct threat” to the health and safety of other workers. However, employers are further advised that they should conduct an individualized assessment in determining whether a direct threat exists. 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.
Similarly, under Title VII of the Civil Rights Act, an employer must provide reasonable accommodations for employees unable to get vaccinated due to religious reasons – unless it would pose an undue hardship. In this regard, the “undue hardship” standard differs from, and is less stringent than, the ADA standard, requiring only that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.” The EEOC guidance further explains that because the definition of religion is broad, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning the nature or sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but should be aware there may be situations where an accommodation is not possible. Ultimately, under both the ADA and Title VII, a reasonable accommodation is intended to be an individualized, fact-based, and interactive process between the employer and the employee.
RPNA will continue to follow these developments and is available to provide specific guidance to employers considering implementing a COVID-19 vaccine policy, e.g., the undue hardship standard for your business, the obligation to provide and/or the type of reasonable accommodations for your individualized assessments.
