By Glenn A. Duhl
More than a year has passed since the COVID-19 pandemic upended the world. Since then, employers have been confronted with an ever-changing landscape in the workforce that has required constant diligence to maintain a safe work environment. Now that the vaccine is widely available, many employers face the question of whether they can mandate their employees receive the vaccine. To date, over 41 percent of the United States is fully vaccinated and just over 50 percent has received at least one dose.
Employers who want their employees to be fully vaccinated may consider two options: incentivize employees to receive the vaccine without mandating it, or implement a vaccine mandate. Any mandate must consider case-by-case exemptions pursuant to both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). Both options are permissible, and employers can legally mandate vaccines or offer incentive programs to encourage vaccinations. Some employers are taking a dual approach—requiring new hires to be vaccinated, subject to applicable exemptions, while strongly recommending current employees get vaccinated.
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance concerning COVID-19’s impact on federal equal employment opportunity laws. It stated that employers are permitted to offer incentives – including penalties and rewards – to employees to get vaccinated so long as they are “not so substantial as to be coercive.” The Commission wrote, “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.” Offering an incentive to be vaccinated does not violate the ADA or the Genetic Information Nondiscrimination Act of 2008.
On April 21, 2021, President Joe Biden encouraged all employers to offer their employees paid time off to get vaccinated. The Internal Revenue Service will provide businesses with fewer than 500 employees a tax credit to offset the cost of time that workers use to get vaccinated, pursuant to the American Rescue Plan Act. Some employers, such as Aldi, Chobani, McDonald’s, and Target, are offering employees paid time off to be vaccinated. Others, such as Kroger, Lidl, and JBS USA, offer cash incentives upon proof of vaccination. President Biden declared June a “National Month of Action” to encourage more Americans to get vaccinated by offering incentives such as sporting event tickets, airline tickets, as well as childcare to parents who are getting vaccinations.
Employers may offer incentives to employees to provide proof that they are vaccinated because such a request is not a disability-related inquiry prohibited by the ADA. Employers must keep an employee’s vaccination information confidential.
The EEOC also confirmed that employers may require all employees who are physically entering the workplace to be fully vaccinated, subject to the reasonable accommodation provisions of Title VII and the ADA.
An employee may be exempt from a vaccination mandate if the employee is eligible for a religious accommodation under Title VII, which prohibits discrimination based on religion. This requires an evaluation as to whether there is a bona fide religious belief, practice, or observation that conflicts with the mandate. Some religious denominations, such as the Faith Tabernacle, Church of Christ, Scientist, and Dutch Reformed Congregations, have theological objections to vaccinations. Some Evangelicals and Christian Nationalists also oppose it. If an employee requests a religious accommodation – and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance – the employer is justified in requesting additional supporting information from the employee.
An employee may also be exempt from a vaccine mandate if he/she is eligible for a reasonable accommodation due to a disability pursuant to the ADA. For example, an individual who has severe allergic reactions to components in the vaccine may be eligible for an exemption. Also, vaccinated persons who are prescribed immunosuppressants may not develop antibodies and, therefore, may be eligible for an accommodation such as remote work, despite compliance with the vaccine mandate.
An accommodation may be denied if it would cause an undue hardship on the employer. This is generally a difficult fact-dependent issue of proof.
An employer is also not obligated to provide a reasonable accommodation for a vaccine mandate if the employee claiming disability accommodation poses a direct threat to the workplace. A direct threat is a significant risk of substantial harm to the individual or others which cannot be reduced or eliminated by a reasonable accommodation. The assessment of a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge. Employers should also consider the frequency and duration of direct interaction the employee would have with other people at work, the number of vaccinated employees in the workplace, whether other employees are wearing masks, and the space available for social distancing.
Examples of a reasonable accommodation include modifying a work schedule or shift assignment to permit an individual to reduce their exposure to others in the workplace, or allowing an individual to work from home. In no case will an elimination of the essential functions of the job be a reasonable accommodation.
As the discussion about vaccine mandates in the workplace continues, state legislators across the country have developed divergent views. There is currently pending legislation in 34 states that would prohibit vaccine mandates or discrimination against employees on the basis of their vaccination status, despite the fact that the Occupational Safety and Health Administration and the EEOC have provided guidance to protect employees from the harm posed by the virus.
In Connecticut, House Bill 6269 would prohibit employers, including healthcare facilities, from taking adverse actions against employees and applicants based on their vaccination status. The bill was referred to the Joint Committee on Labor and Public Employees on January 29, 2021 and has not left the committee.
In New York, Senate Assembly Bill A7100 goes beyond the proposed legislation in Connecticut, and would prohibit vaccine mandates in a variety of circumstances. The proposed legislation would also establish a Vaccine Bill of Rights that states, among other things, that “all persons reserve the right, at all times, to determine what is in their own best medical interest without threat to their livelihood, schooling, or freedom of movement.”
In Rhode Island, House Bill 5989 would make it an unlawful employment practice to refuse to hire, discharge, penalize, or discriminate against individuals based on their vaccination status. On April 6, 2021, the House Judiciary Committee recommended that the bill be held for further study.
The Massachusetts Legislature has not proposed any legislation that would prohibit employers from discriminating against individuals who are not vaccinated or mandating the vaccine.
For now, while the country works to minimize the public health threat raised by the disease, the debate goes on. As more persons are vaccinated, the health risk is reduced, until a new variant arises. Stay tuned.
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.
