Last month, the EEOC issued guidance regarding whether or not employers can require employees to obtain the Covid-19 vaccination as a condition of employment. Under the EEOC guidelines, the answer is “Yes, but.”
As with most things in the law, the guidelines contain a number of shades of gray. While an employer may, as a general rule, require its employees to obtain the vaccination, there are exceptions. Those exceptions will typically apply when an employee claims that he or she cannot obtain a vaccination because of a “sincerely held” religious belief, or when the employee claims that he or she has a disability (for example, allergy) that precludes obtaining the vaccination. In those types of situations, the natural question is whether the employer has to continue to employ those employees who refuse vaccinations based on either a disability or religious reasons. The answer to that question is “Maybe.”
If an employee refuses to obtain an employer mandated vaccine based on a disability, the employer must, before terminating the employee, determine whether the employee’s continued employment poses a direct threat to the health and safety of other employees. In doing so, the employer should consider four factors: (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm. If the employer determines that it does, then the employer must determine whether that risk can be alleviated through a reasonable accommodation. In doing so, the employer should consult with the employee to determine whether working remotely or some other accommodation will eliminate the threat. A failure to take those steps could result in an inadvertent violation of the Americans with Disabilities Act.
Under federal and state discrimination law, employers are generally required to accommodate an employee’s sincerely held religious beliefs unless it would cause an undue hardship for the business. If there is an objective question as to whether there is really a “sincerely held” religious belief, the employer may request additional information in good faith to determine the legitimacy of the requested exception. If the employer determines that the request is based on a sincerely held religious belief, then the employer must determine whether a reasonable accommodation can be made for the employee.
As with most employment issues, there are a myriad of other state and federal employment laws that should be considered as well.
With that, the next question is whether an employer should implement such a mandatory policy. Not surprisingly, the answer is “it depends.” Employers might find that mandating the Covid-19 vaccine would result in decreased employee moral or a general unwillingness to comply. Even if only a few refuse for reasons other than disability or religious reasons, a deviation from a mandatory vaccine policy could lead to discrimination claims and poor employee relations. Therefore, employers may wish to consider encouraging and incentivizing employees to get the vaccine by allowing time off, coverage of expenses, and other incentives for those who get vaccinated.