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After nearly a year of making difficult employment decisions, businesses across the U.S. face one more question: Should I make COVID‑19 vaccinations mandatory or voluntary for returning employees?
As the vaccine rolls out and workplaces reopen, employers are looking for guidance on how to handle the issue. To date, the federal government has not mandated the vaccine, although state and local jurisdictions could do so.1 For employers seeking to require vaccines, the EEOC has issued guidance on how to comply with pertinent federal discrimination laws. However, even if employers can mandate a vaccine and successfully navigate the numerous laws, many employers are opting for more flexible approaches. According to the Society for Human Resource Managers (SHRM), 61% of surveyed employers say they intend to encourage rather than mandate a vaccine.2 There are many factors to consider in deciding what approach is best for any one employer, including legal risks, employee relations and morale. Here I discuss the guidance from the EEOC and the choices that businesses are making today on the “mandate or encourage” question.
The EEOC released updated technical assistance to the business community on December 16, 2020, essentially permitting mandatory vaccines as a condition for continued employment. There are two major exceptions to this general rule: (i) disability or (ii) religious discrimination.3 Through a Q&A format, the EEOC details how an employer can determine if disability or religious objections exempt the employee from a vaccine requirement. We urge reference to the full EEOC publication for important details but summarize the guidance.
Under the Americans with Disabilities Act, for a vaccine or any safety-based qualification standard, an employer must be able to show that a “direct threat” to health and safety exists and, if individuals with disabilities are affected, there is a “significant risk of substantial harm” that cannot be eliminated or reduced by “reasonable accommodation.” The employer cannot exclude the unvaccinated employee from the workplace unless there is no way to provide a reasonable accommodation without “undue hardship.” The employer must make an individualized assessment of workplace risk and accommodation options. Allowing an employee to work remotely might be a reasonable accommodation for an office environment without undue hardship to the employer (particularly if the employee was already working remotely), but it might not be reasonable for other settings, such as restaurants and retail establishments.
The test for religious discrimination starts with the employee claiming a “sincerely held religious belief” for rejecting the vaccine. At that point, the same “reasonable accommodation” - absent “undue hardship” - standard applies. Without a valid disability or religious reason for refusing the vaccine, the employer is not obligated to accommodate the employee. In other words, a purely personal objection to vaccines by itself would not satisfy the exception. The EEOC guidance makes clear that state and local laws, as well as other federal laws, could impose additional or different requirements. This is a complex area, and the risk of discrimination lawsuits may give some employers pause before adopting a mandatory vaccine policy.
Through reading articles published by employment law experts, we can glean how attorneys are viewing the risks and how companies are answering the vaccine question.4 These articles weigh and balance the discrimination concerns as well as health, employee relations and morale issues. Although workers are becoming more accepting of a vaccine, a significant number - roughly 25% - say they will refuse it for personal reasons. After weighing and balancing these factors for their own organizations, employers who have taken a position are “encouraging” rather than “mandating” vaccines.
Here are the options that law experts are discussing at this time:
One theme woven through the law firm articles reviewed is the importance of open and full communication with employees about COVID/vaccine health and safety risks, and the policy adopted by the employer. Given divergent views on the necessity of vaccines, employee morale should be considered. Another theme is the need to tailor the vaccine policy to the type of business, risk profiles of employees and customers, and all applicable laws in the jurisdiction. Consistency is also stressed as to how a vaccine policy is applied and administered.
Finally, as you might expect, all the articles recommend employers obtain legal advice before adopting a position. The vaccine issues are complex, and there are multiple legal, health and employment risks associated with all the approaches. The vaccine question may not be the most challenging faced by employers to date, but it may be the one where expert legal help is most needed.6 If you have not sought legal counsel yet on COVID‑19-related employment questions, this is a good time to start.
