The coronavirus has been devastating, to say the least. But there has been recent news from pharmaceutical companies indicating promising results from their clinical trials.
For example, Pfizer and BioNTech just announced that after completing a Phase 3 study of their coronavirus vaccine, it had a 95% effectiveness rate. So now, most talk isn’t if we’ll get an effective coronavirus vaccine, but when.
With a vaccine seemingly just around the corner, many employers now face the prospect of deciding whether or not they should have their employees get the coronavirus vaccine. For many employees, it’ll be a choice. For others, it might be a requirement. But is an employer legally allowed to require employees to get the coronavirus vaccine?
The Short Answer
As a general rule, yes, an employer may impose a vaccination mandate for its employees. At first, this might sound surprising, or a little oppressive. But when you think about it, it shouldn’t be surprising at all.
For example, many health care workers in hospitals, clinics and nursing homes have been required to be vaccinated for years. Sometimes, these requirements come from employers.
Other times, they are imposed by state law, although states might differ in which vaccines are required, exemptions they allow and who the requirements apply to.
There’s also precedence from the Occupational Safety and Health Administration (OSHA), which has stated that an employer may require its employees to get certain vaccines, such as the seasonal flu and the H1N1 swine flu vaccines.
But there are two major exceptions to this vaccination requirement. First, there is an employee’s religious belief. Second, there is a medical condition that makes it unreasonable to expect the employee to get vaccinated.
The Religious Exemption
The right to refuse a workplace vaccination based on religious grounds comes primarily from Title VII of the Civil Rights Act of 1964 (Title VII). This law applies to local, state and federal governments, as well as private employers with 15 or more employees. Title VII protects employees from discrimination on a variety of characteristics, including religion.
To decide if a religious exemption under Title VII allows an employee to avoid getting a coronavirus vaccine, the employee must prove two things: they have a sincerely held religious belief and not getting vaccinated does not impose an undue hardship on the employer.
Sincerely Held Religious Belief
To receive protection under Title VII, the belief must be religious and it must be sincerely held.
The U.S. Equal Employment Opportunity Commission (EEOC) interprets the concept of religious belief in an expansive manner. Besides the tenants of many traditional and common organized religions, it can include moral and non-theistic ethical beliefs as to what is right and wrong. And a religious belief does not need to be widely held, but can be new, uncommon or be separate from a formal religious sect, group or denomination.
Despite this broad take on what constitutes a religious belief, they do not include personal or political beliefs.
A religious belief is sincerely held if the employee honestly holds that belief. In most cases, this element is assumed. However, there may sometimes be evidence that indicates the religious belief an employee relies on to request an accommodation is not sincerely held.
Undue Hardship Under Title VII
Even if the employee has a sincerely held religious belief, the employer does not have to allow for the vaccine exemption if providing this accommodation would constitute an undue hardship on the employer.
An undue hardship is something that imposes more than a minimal burden on the employer. If a requested accommodation would result in staffing shortages, cost more than a minimal amount of money or jeopardizes the health or safety of others, it will likely constitute an undue burden.
Assuming the employer has a legitimate concern for the health and safety of its workers, customers and anyone else in its workplace, it’s easy to imagine how a coronavirus vaccine refusal would result in an undue burden on the employer in most situations.
However, it’s also possible there is an accommodation that imposes only a minimal burden on the employer and provides an equivalent level of protection from coronavirus infection or spread. Depending on the nature of the job, this might allow the employee seeking the vaccination exemption the ability to work from home or with a mask on.
The Medical Exemption
If an employee has a certain medical issue, the Americans with Disabilities Act of 1990 (ADA) may allow them to be exempt from an employer’s coronavirus vaccination mandate.
For the ADA to provide this exemption, the employee needs to show that they have an ADA-recognized disability that prevents them from taking the coronavirus vaccine and that this vaccination exemption does not impose an undue hardship on the employer.
Disability Covered by the ADA
The ADA recognizes disabilities that impose a physical or mental impairment that substantially limits a major life activity. This sounds like a high bar to meet, but the Americans with Disabilities Act Amendment Act of 2008 (ADAAA) requires employers to interpret the term “substantially limits” broadly so that employees may receive the greatest level of protection under the ADA.
A common example of a covered disability that might apply in the vaccination context is a compromised immune system. It’s also possible that an allergy to an ingredient in the vaccine will be recognized by the ADA as a disability, but not all courts agree on this.
Assuming the employee seeking the coronavirus vaccine exemption has a disability that’s covered by the ADA, they can only refuse the coronavirus vaccine if the refusal does not impose an undue hardship on the employer.
Undue Hardship Under the ADA
An accommodation poses undue hardship if the employer has to incur substantial expense or difficulty to provide the accommodation. This is a very fact-specific analysis and depends on the characteristics of the job, the employer’s business and the employer’s resources. Therefore, what might be reasonable for a major corporation would not be reasonable for a small business.
Another complication is that the EEOC has declared the coronavirus a “direct threat.” A direct threat is “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.”
This designation gives employers more leeway in what they can require of their employees, like getting vaccinated against the coronavirus. Theoretically, this should make it easier for employers to force employees to get the coronavirus vaccine. However, how the direct threat designation works when applied to a coronavirus vaccination mandate is still not clear.
Practical Considerations of a Coronavirus Employee Vaccination Policy
Even if the law allows an employer the legal right to mandate that employees receive a coronavirus vaccine, it may not be worth the risk to institute such a policy.
One form of risk comes from a scenario where an employee suffers a severe side effect from the vaccine. That may result in a workers’ compensation claim that the employer must deal with.
Another risk could come from public backlash. Given how politicized the coronavirus and its vaccine has become, any coronavirus vaccine policy will likely upset a lot of people.
According to Gallup, if a free, FDA-approved coronavirus vaccine were available today, 35% of respondents said they would not get vaccinated. This shows that any opposition to the coronavirus vaccine is not just limited to people who have a general opposition to vaccines.
In light of the resistance some people have to mask wearing, because a vaccine is more invasive and potentially dangerous, it’s easy to see why so many people will be resistant to a coronavirus vaccination requirement.
What might be best is for employers to simply recommend their employees get the coronavirus vaccine and hope most of them do so. There’s also the possibility that a state might establish a legal requirement for certain employees to get vaccinated. This would allow some employers to avoid any blame when it requires its employees to get the vaccine to protect them from the coronavirus.
