By: Lindsay Massillon
As published in the Daily Business Review | November 24, 2020
Last Monday, Moderna announced that its COVID-19 vaccine was 94.5% effective. Pfizer and BioNTech boasted similar results earlier this month. It is apparent that we are on the verge of seeing a vaccine by early next year, even though the vaccines must first be approved by the Food and Drug Administration (FDA) and be available to the masses. However, it is not too early for employers to consider how to approach vaccinations and develop a policy to add to the company’s existing COVID-19 procedures. The biggest question on everyone’s mind is whether employers can make vaccinations mandatory—and what happens to the inevitable objector. While legally, employers can require employees to get vaccinated, there are several considerations.
Disability and Religious Accommodations
The Equal Employment Opportunity Commission (EEOC) issued guidance prior to the COVID-19 pandemic stating that employers covered by Title VII and the Americans with Disabilities Act (ADA) were prohibited from compelling all employees to take the flu vaccine without taking into consideration an employee’s religious beliefs or disability. So, while an employer can implement a mandatory vaccination policy, it cannot summarily deny requests for accommodation. Where a qualified employee requested an accommodation due to a disability, a covered employer would need to provide an accommodation—or exception—to vaccine mandates. Such a request may only be denied where an employer can show that vaccination is job related and consistent with business necessity (i.e., health care industry) or justified by a “direct threat’ posed by the employee.
In addition to an accommodation based on an employee’s disability, employers must also be mindful of their employee’s religious beliefs which may require an accommodation. In order to be protected under Title VII, religious beliefs must be “sincerely held.” There are a number of people who have personal objections to vaccinations—but generally, those individuals will not be able to prove that their objection equates to a religious belief. Nevertheless, employers should proceed with caution when considering whether to deny an accommodation request on this basis.
Accommodations for religious beliefs and for disabilities can be denied where the accommodation would pose an undue burden on the employer. While an argument may be made that one unvaccinated employee puts all employees at risk (and is therefore an undue burden), it is not guaranteed that a court will agree. It would be feasible, for example, for an employer to quarantine a person who refuses to get vaccinated from other employees. We can expect that courts will more narrowly construe “undue burden” against the employer as litigation in this area continues to rise.
Employers choosing to make vaccines mandatory should be prepared for an increased amount of employees claiming that getting vaccinated is against their beliefs or negatively impacts their disability. There also will be employees with disabilities who are unwilling to return to work if employees have the choice of not getting vaccinated. Employers may make certain inquiries to determine whether these objections or requests are protected by law but should tread carefully. Front-line managers should be fully trained on how to handle these requests and/or refer employees to human resources; and decision makers should make sure to explore all alternatives.
Can employers discipline the dissenters?
Employers should also be on the lookout for potential whistleblowers seeking protection under the Occupational Safety and Health Act (OSH Act) or state statutes. Under the OSH Act, an objecting employee may have a valid claim if the employee is subjected to discipline or terminated for refusing vaccination based on his or her concern that the vaccine will exacerbate a pre-existing medical condition or lead to death. Along those same lines, employers should also be aware of employees who are engaged in protected concerted activity under the National Labor Relations Act (NLRA). If employees band together in protest of a mandatory vaccination policy and management takes adverse action against those employees, it may be considered an “unfair labor practice.” Employers often forget about the NLRA, presuming it only applies where employees are unionized. This is a costly mistake as the NLRA protects most non-management employees who work for a private employer. Thus, most employers are exposed to liability under the NLRA. Bottom line: employers should think twice when taking action against disgruntled employees.
The guidance from government agencies has been in constant flux since the onset of the pandemic and we can expect additional changes in guidance once a vaccine is approved. For now, all employers should continue to monitor the status of vaccine availability and relay the information to employees. Based on the EEOC’s current guidance, employers may want to strongly consider encouraging vaccinations rather than making vaccinations mandatory—especially if the employer is outside the healthcare industry. The first step is developing a policy on vaccinations and communicating that policy to employees. Keeping employees updated on the status of vaccinations and revising company policy in accordance with the latest guidance demonstrates the company’s dedication to keeping a safe workplace for all employees. Should an employer decide to implement a mandatory policy, management should work closely with an employment law attorney to develop same and discuss issues which may arise when the policy is rolled out.
Lindsay M. Massillon is a shareholder at Fowler White Burnett. She focuses her practice on labor and employment law and commercial litigation. Contact her at LMassillon@fowler-white.com.