Can an employer require employees to take a COVID-19 vaccine, if and when the vaccine becomes available in the United States?
COVID-19 VACCINE SERIES
Campbell Litigation will be running an ongoing series in the coming months regarding the impact of a COVID-19 vaccine on the workplace
According to the New York Times’ Coronavirus Tracker, five COVID-19 vaccines are already approved for early or limited used.[i] As vaccines become approved for full use through further clinical trials, employers may contemplate whether they can make vaccines a mandatory condition of employment. The answer is not entirely clear.
Employers should turn to agency guidance regarding mandatory flu vaccinations to help answer this question. In November 2009, the U.S. Occupational Safety and Health Administration (“OSHA”) took the position that while it “does not specifically require employees to take [vaccines], an employer may do so.”[ii] If an employee refuses vaccination due to a reasonable belief the employee has a medical condition that creates a real danger of serious death or illness—like a serious reaction to the vaccine—that employee may be protected “under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.”[iii]
In March 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance that specifically addresses whether employers covered by the American with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can mandate employee flu vaccinations.[iv] Under this guidance, the EEOC explains that an employee may decline mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine. In that case, the employer must give the employee a “reasonable accommodation” unless it would result in “undue hardship” to the employer. Under the ADA, “undue hardship” means “significant difficulty or expense.”[v]
Similarly, under Title VII, once an employer receives notice that an employee’s “sincerely held religious belief, practice or observance” prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation to the exempt employee under Title VII. However, the “undue hardship” standard under Title VII is less stringent than it is under the ADA. Under Title VII, employers do not need to grant accommodation requests that result in more than “a de minimis cost” to the employer’s operation of business.[vi]
However, while the EEOC’s guidance noted possible exemptions under the ADA and Title VII, it also recognized that COVID-19 poses a special risk that gives employers greater latitude in what it can require of employees to maintain safe workplaces and whether an unvaccinated employee poses a “direct threat” under the ADA, defined as a “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.”7 As a “direct threat”, COVID-19 poses a risk that would make it difficult for employees to refuse a vaccination on ADA or Title VII grounds and expect to remain employed.
Takeaway
Agency guidance on mandatory flu vaccinations may help employers determine whether they can make a COVID-19 vaccination a condition of employment, if and when such a vaccine becomes widely available. However, many questions remain, such as what constitutes a “reasonable accommodation,” as well as what an “undue hardship,” or a “de minimus cost” to an employer for those reasonable accommodations. Employers may also wonder about how to deal with potential liabilities stemming from mandatory COVID-19 vaccinations, or from discrimination against employees who claim legitimate exemptions under the ADA or Title VII. Campbell Litigation will provide a series of future blog posts on these, and other COVID-19-related employer questions.
Footnotes:
[i] Jonathan Corum, Denise Grady, Sui-Lee Wee, Carl Zimmer, Coronavirus Tracker, New York Times, Sept. 15, 2020, https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.html
[ii] Jordan Barab, OSHA’s Position on Mandatory Flu Shots for Employees, United States Department of Labor, https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09
[iii] Id.
[iv] https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
[v] Id. (citing 42 U.S.C. § 12111(10); see also 29 C.F.R. § 1630.2(p) (including factors to consider when determining undue hardship); 29 C.F.R. pt. 1630 app. § 1630.2(p) (providing a more detailed analysis and examples of where a requested reasonable accommodation would pose an undue hardship)).
[vi] Id. (citing Equal Employment Opportunity Comm’n, EEOC Compliance Manual Section 12: Religious Discrimination 56-65 (2008), https://www.eeoc.gov/policy/docs/religion.pdf)).
7 29 C.F.R. § 1630.2(r).