Vaccinations can be an emotionally fraught issue for some people, for various reasons, and the COVID-19 vaccines being administered today come with additional fears about potential side effects. Yet the risk of contracting COVID-19 — and spreading it — remains across the country. Employers may wonder whether they're legally allowed to require on-site workers to receive a COVID-19 vaccination when it's available to them.
In December of 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance on this topic. Based on the guidance, employers may require most employees to provide proof they've been vaccinated. However, notable exceptions apply. First, employers must exempt employees who are unable to receive a vaccine because of a disability. And an employer must grant an exception to employees who refuse a vaccination because of a sincerely held religious belief, practice or observance.
What about Incentives?
While a vaccination mandate covering most employees might seem to be the simplest approach to protecting the health of your employees and customers, it might not be the best — or the only — option. Some employers have announced that they're providing financial incentives to employees who prove that they received a COVID-19 vaccine, rather than requiring them to receive one. These incentives may include a bonus, gift card or paid time off. However, be aware that there may be legal risks involved in offering incentives so consult with your employment attorney before starting such a program.
As a country, we've been down some similar roads before with vaccine mandates. In 1905, for example, a state law in Massachusetts called for universal vaccination against smallpox. The law was challenged but was ultimately upheld by the U.S. Supreme Court. More recently (in 2009), the EEOC and the Occupational Safety and Health Administration (OSHA) generally gave employers the green light to require workers to be vaccinated against the H1N1 "swine flu" virus. And, of course, some employers require employees to get a flu shot each year.
One difference today (at least so far) is that the current vaccines being used to protect people from COVID-19 have only been approved for emergency use. That's a step below a full stamp of approval from the U.S. Food and Drug Administration (FDA). In fact, one of its fact sheets notes that "There is no U.S. Food and Drug Administration (FDA) approved vaccine to prevent COVID-19." However, the distinction that the current vaccines haven't been approved by the FDA hasn't been addressed by federal regulators that have weighed in on the topic.
Rules explicitly governing vaccination practices in the employment context are grounded in three laws:
While employers may justify vaccine mandates under OSHA's requirement that they provide a safe workplace, an exception to the general rule allows employees to opt out if they believe being vaccinated would pose a serious risk to their health.
Employees can also seek a religious exemption to an employer mandate (such as a vaccination) under Title VII. To do so, employees must demonstrate certain reasons including that they have a sincere religious belief that conflicts with the mandate and that they've informed their employers of that conflict.
Employers are required to make "reasonable" accommodations to employees who object on religious grounds.
Enforcement guidance recently issued by the EEOC states the following: "Because the definition of religion is broad and protects beliefs, practices and observances which the employer may be unfamiliar with, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief."
Employees who have objected to a vaccination mandate merely on the basis of personal beliefs, not a formal religious belief, have been shot down in a pair of U.S. appellate court cases. (The cases didn't deal specifically with COVID-19.)
The EEOC lays out its position in Section K of its webpage entitled "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws." It explains how to handle employees who object to a vaccine mandate based on a disability. (An example of a relevant disability might be an allergy to certain medicines.)
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.
When asked for an exemption, the EEOC states, "Employers should conduct an individualized assessment of four factors determining whether a direct threat exists." Here are the factors:
1. The duration of the risk,
2. The nature and severity of the potential harm,
3. The likelihood that the potential harm will occur, and
4. The imminence of the potential harm.
In other words, assessing the risks and possible accommodations shouldn't be a snap judgment, cautions the EEOC, but a matter of careful consideration.
An acceptable basis for concluding that an employee poses a "direct threat" is that the "unvaccinated individual will expose others to the virus at the worksite," the EEOC states.
That would not by itself, however, be grounds for terminating an employee who refuses to become vaccinated. The ultimate test is whether a reasonable accommodation is possible, including working remotely. "This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms," the EEOC points out.
The EEOC informs employers that assessing the nature of the threat posed by a non-vaccinated employee and possible accommodations, should be an "interactive process." That may lead to a determination that "supporting documentation" about the employee's disability is needed to draw a firm conclusion.
Weigh All Risks
Employers must weigh several issues in deciding how to handle encouraging COVID-19 vaccines — or mandating them. These issues include employee morale, liability, as well as employee and customer safety. Consult with your employment attorney before launching a vaccination program.
Finally, keep in mind that your state and local labor laws may take a more aggressive stance than the federal government on accommodating employees who don't want to take COVID-19 vaccinations. Your attorney can review those laws, if any, before finalizing your vaccination policy.
Contact VonLehman’s Human Resources Consulting Group for guidance related to this topic. Deirdre Bird – firstname.lastname@example.org or 800.887.0437.