With the first vaccines approved to fight the COVID-19 virus, many ask if an employer can require a COVID-19 vaccination as a condition of employment.
The answer is complicated.
The first place to look for an answer to this question is the EEOC’s COVID-19 Technical Assistance Questions and Answers. This guidance is available at www.eeoc.gov. The EEOC regularly updates this guidance as we obtain new information about COVID-19 and the vaccines.
As a general rule, an employer can require employees to get vaccinated. However, there can be exceptions to this general rule because of ADA disability concerns and religious discrimination concerns.
An employee may have a disability that prevents the employee from getting the vaccine. There, two things could happen. First, an employer may argue that the employee could be terminated because the employee is not a “qualified employee” under the ADA. Employees who directly threaten the health or safety of individuals in the workplace are not “qualified employees” under the ADA. However, the employer would have to actually show that the employee poses a direct threat to others.
Before concluding that an employee who is not vaccinated poses a direct threat to other employees, the employer must individually assess the risk to others. This assessment considers factors such as: (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.
If an employer determines there is a direct threat from an unvaccinated person that cannot be reduced to a reasonable level, the employer can exclude the person from entering the workplace. However, the company cannot just automatically terminate the employee. Instead, the company must explore where there are other reasonable accommodations (such as working remotely) that would allow the employee to perform his or her job duties.
The second scenario—and the one likely to be far more common—is that an employee who cannot get the vaccination asks for an exemption from that requirement as a reasonable accommodation under the ADA. Again, an employer must assess each requested accommodation on an individualized basis. If the employee can easily work remotely, that would be one easy accommodation. In other cases, it might be trickier. However, the employer could consider other steps (such as private office spaces, plexiglass dividers, etc.) that could protect the employees.
Sincerely held religious beliefs
The second area where claims may arise from a mandatory vaccine requirement is with employees whose sincerely held religious beliefs prevent the employee from receiving the vaccine.
If an employee tells the employer he or she has a sincerely held religious belief preventing the employee from obtaining the vaccine, the employer must reasonably accommodate that religious belief unless it poses an “undue hardship.” An “undue hardship” is something having more than a de minimis cost or burden on the employer.
Just like with the ADA, if an employee asks for an accommodation due to sincerely held religious beliefs, the company and the employee should together explore what reasonable accommodations can be made to accommodate that belief.
Though a company may exclude the employee from the workplace if the employee cannot get vaccinated, it does not mean that the company can automatically terminate the employee. Again, the company must explore other potential accommodations, such as remote work.
After such a hard year, companies and employees want things to return to normal. The push to vaccinate employees soon is expected. However, there may be legitimate reasons for some employees to request to be exempted from a vaccination requirement.
This will be a tricky area to navigate in the coming months. If we can help, please contact us.