Can My Boss Make Me Get a COVID Vaccine?
COVID Vaccine
Can My Boss Make Me Get a COVID Vaccine?
Written by Sean Krieg
All but two states have lifted COVID restrictions on businesses or intend to do so within the next month.[2] As states reopen, restaurants and retail outlets are humming, and professional staff are being brought back into offices after a year of remote work. As part of this reopening, employers are facing the unique dilemma of whether to require vaccination as a condition of employment. Although there are social, business, and public health components to consider, one thing is clear: in most cases it is perfectly legal for an employer to enact a mandatory COVID-19 vaccination policy.
Although mandatory vaccination policies are generally permitted, there are a few exceptions. On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) released updated guidelines on how civil rights laws may impact mandatory vaccination policies.[3] This guideline details the two primary exceptions employers must be aware of if they choose to require vaccinations for employees who physically enter the workplace.
Employees May Object to Vaccination Because of a Disability
One such exception arises if an employee’s vaccination is prevented by a disability recognized under the Americans with Disabilities Act (“ADA”). Although this exception is limited, if an employee requests exemption from vaccination because of a disability, an employer should proceed cautiously. After receiving medical evidence of the claimed condition, an employer should engage in a two-step analysis.
First the employer must determine if allowing that employee to work unvaccinated poses a direct threat to the health and safety of others. Normally this would be established using a multifactor test.[4] However, in March 2020, the EEOC revised a 2009 publication on pandemic preparedness to specify that the COVID-19 pandemic meets the direct threat standard of the ADA.[5] Accordingly, in most cases it will be relatively easy for an employer to show that an unvaccinated employee in the workplace poses a direct threat.
Second, if the unvaccinated employee does pose a “direct threat,” the employer must engage in an interactive process with the employee to seek out a reasonable accommodation to minimize the risk. Accommodations may range from telework to masking and will necessarily differ from workplace to workplace.[6] However, even when accommodations are theoretically possible, employers are not required to make them if they are expensive, difficult, or result in the employee being unable to perform an essential job function. Ultimately, if no suitable accommodation can be found, or if accommodation imposes undue hardship on the employer, the employee may be excluded from the workplace for refusing to get vaccinated.[7]
Employees May Object to Vaccination Because of Religious Beliefs
The second exception to an employer’s ability to require COVID vaccinations is a religious objection under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII guarantees certain protections for sincerely held religious beliefs, practices, and observances. Although an employee’s beliefs are not required to be derived from a traditional religious group, an employer is not necessarily required to accept them at face value. Employers who have an objective basis for questioning the sincerity of beliefs, practices, or observances are permitted to do so.[8] If a sincere and genuine religious belief cannot be established, the employee can lawfully be excluded from the workplace unless vaccinated.[9]
If an employee’s religious objection to vaccination is sincere, Title VII requires an employer to consider reasonable accommodations for that employee in a manner similar to the ADA. However, Title VII grants employers significantly more leeway to deny accommodations to religious objectors than to those with a diagnosed disability. An employer can deny any accommodation that involves more than a “de minimis” cost—interpreted to mean anything non-trivial to the employer.[10] It is entirely possible that merely permitting an unvaccinated employee to work in physical proximity to others during a global pandemic imposes a non-trivial burden on the employer, and other accommodations, like telework, have widely accepted (albeit intangible) costs. Thus, employers can likely deny accommodations for religious objections to vaccination in most cases. Regardless, an employer who excludes an unvaccinated employee from the workplace is well advised to consider leave entitlements prior to termination, just as with disability-based objections.
Ultimately, employers can legally require their employees to get vaccinated against COVID-19 before entering the workplace under most circumstances. However, employers should proceed with caution when responding to employee objections to mandatory vaccination policies, especially those that are based on claims of discrimination. As agencies like the Centers for Disease Control and Prevention release new guidelines, the rights and duties of employees and employers are likely to change. To get individual answers to your employment-related questions, call 602.999.2908 to schedule a consultation with an attorney, or fill out the form on this page.
[1] aka “The Fauci Ouchie.”
[2] See Reopening Plans and Mask Mandates for All 50 States, NY Times (June 4, 2021), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html (last visited June 6, 2021).
[3] U.S. Equal Emp’t Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated 2021).
[4] 29 C.F.R. 1630.2(r).
[5] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-2009-3, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (updated 2020)
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (last visited June 6, 2021).
[6] See Job Accommodation Network, Off. Disability Emp’t Pol’y, Accommodation and Compliance: Coronavirus Disease 2019 (COVID-19), https://askjan.org/topics/COVID-19.cfm (last visited June 7, 2021).
[7] Even after excluding an employee from the workplace following this two-step process, and employer is advised to consider leave entitlements under federal and state law prior to proceeding with termination.
[8] See generally Proctor v. Consol. Freightways Corp. of Delaware, 795 F.2d 1472 (9th Cir. 1986).
[9] Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487 (3d Cir. 2017) (holding a sincerely held medical belief based on morals and ethics was insufficient to protect an employee from termination for refusing vaccination).
[10] TWA v. Hardison, 432 U.S. 63 (1977).