Employers continue to face new questions as to how to maintain a safe work environment and remain in compliance with both federal and state laws during the COVID-19 crisis. As vaccinations become a reality, employers are beginning to confront how to address employee vaccination mandates.
Can an employer require its employees to be vaccinated? Guidance related to vaccinations for other illnesses suggests that the answer is yes, subject to religious exemptions under Title VII of the Civil Rights Act of 1964 (Title VII) and disability exemptions under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) has updated its pandemic flu guidance to include COVID-19 in many areas. While the EEOC has not amended that guidance since vaccination for COVID-19 became a realistic possibility, it still remains the best available. It cautions that both Title VII and the ADA present obstacles to an across the board COVID-19 vaccination mandate. The EEOC recommends that employers encourage their employees to get a vaccination, rather than require it.
Employers have two options: encourage employees to receive the vaccination without mandating it, or implement a mandate, but allow case-by-case exemptions pursuant to Title VII and the ADA.
An employee may be exempt from a vaccination mandate if the employee seeks a religious accommodation under Title VII, which prohibits discrimination in the workplace based on an employee’s religion. An employer is required to provide a reasonable accommodation to an employee whose religious belief, practice, or observation conflicts with the mandate, unless the accommodation would create an undue hardship on the employer. An undue hardship under Title VII is defined as “more than a de minimis cost” (a cost too trivial or minor to merit consideration) to the operation of the employer’s business.
An employee may also be exempt if the employee seeks a reasonable accommodation based on a disability under the ADA, which prohibits discrimination in hiring, firing, advancement opportunities, and compensation based on a qualified individual’s disability. A disability includes a physical or mental impairment that substantially limits oqne or more major life activities of an individual. State laws have even more expansive definitions, such as an employee having a chronic condition.
An employer may not be required to provide an accommodation under the ADA if it shows that the accommodation would create an undue hardship. An undue hardship means an action that would require significant difficulty or expense, in light of the consideration of certain factors. Some factors used to determine whether an accommodation would place an undue hardship on an employer include the nature and cost of the accommodation, the overall financial resources of the facility involved in providing accommodations, and the overall financial resources of the employer. The latter consist of the size of the business, the number of employees, and the type of operation or operations of the covered entity, which includes the composition, structure, and function of the workforce of the entity.
While employers are evaluating whether it would be prudent to enact a COVID-19 vaccination mandate, examples of how employers have handled influenza vaccination mandates is instructive. In one case, a hospital worker brought an employment discrimination lawsuit against his employer alleging that that the hospital’s vaccination policy violated Title VII and because he was told that failure to take the vaccination would result in disciplinary action. The employee claimed that his employer took an adverse employment action against him when he refused to receive the vaccine. The court granted the employer’s motion to dismiss because it did not take any disciplinary action due to his failure to comply with the policy.
In another case, a hospital employee sued her former employer claiming that the mandatory flu vaccination policy violated her religious beliefs under Title VII. The employer assisted her in trying to find a position that did not require vaccination, but was unsuccessful. Due to her inability to find a position, the employer treated her termination as a voluntary resignation, in order to preserve her ability to apply for positions in the future. The court held that the employer provided the employee a reasonable accommodation when it, among other things, assisted her in seeking another position in order to limit infection to patients, and allowed her to take a two-month leave of absence to find another job elsewhere. The court noted that Title VII does not require an employer to create positions to accommodate an employee, as that would create an undue burden on the employer because the accommodation would have increased the likelihood of transmission of influenza.
If an employer elects to adopt a vaccination mandate, the employer should ensure that it has a system in place to allow employees to request accommodations. When evaluating an accommodation requests, employers should be mindful of the respective standards under Title VII, the ADA, applicable state laws, and the latest guidance from federal and state agencies.
While COVID-19 vaccination is finally getting under way, employers must plan and be prepared. In enacting new policies or reviewing existing ones, employers should be aware that, once again, no clear path is before them. The laws and administrative agency guidance changes almost daily.
Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.