October 15, 2020 | Category: COVID-19, Employment

The convergence of flu season and the COVID-19 pandemic have employers considering — possibly for the first time — whether to mandate that employees get vaccinated to prevent the spread of influenza and COVID-19 in the workplace. The Centers for Disease Control (CDC) recommends getting the seasonal flu vaccine to help protect against influenza, which can be serious and lead to hospitalization and sometimes death. It is likely that the CDC will make a similar recommendation regarding the eventual COVID-19 vaccine.

Can You Mandate Employees Get Vaccinated?

Generally, yes. Employers can establish reasonable health and safety requirements in the workplace, including mandatory vaccination programs and policies. However, employers must still consider requests for religious accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation under the Americans with Disabilities Act (ADA).

Accommodations for Religious Reasons

An employer’s obligation to accommodate for religious reasons is only triggered by an employee’s sincerely held religious belief. Personal objections or ethical opposition to vaccines are not equivalent to a sincerely held religious belief. Therefore, if the accommodation request only alleges a personal or ethical objection to vaccination, it does not fall within the purview of Title VII.

Employers should be mindful that “religion” is interpreted broadly — to include traditional, organized religions as well as beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people. Therefore, employers should be careful in rejecting an employee’s religious accommodation request simply because it is unfamiliar to them.

If the employee is able to establish a sincerely held religious belief, the employer must accommodate unless it poses an undue hardship. Under Title VII, undue hardship is “more than de minimis cost” on the operation of the employer’s business. This is a lesser standard than what is required under the ADA.

Accommodations for Medical Reasons

Similar to an accommodation for religious reasons, an employer has an obligation to accommodate for medical reasons only if disability-related. “Disability” is defined as a physical or mental impairment which substantially limits one or more major life activities (like walking, talking, seeing, hearing, learning, etc.), a record of such an impairment, or being regarded as having such an impairment.

While courts are split on whether sensitivity to vaccines meets the definition of a disability, it is important for employers to engage in the interactive process to determine whether the ADA applies. This can (and should) include documentation from a healthcare provider that substantiates the medical reason for the accommodation request.

If the employee is able to establish that they have an ADA-covered disability, the employer must accommodate unless it poses an undue hardship. Undue hardship under the ADA requires more than a de minimis cost (which is the standard under Title VII for religious accommodations), it must involve significant difficulty or expense.

Should You Mandate Employees Get Vaccinated?

While not without risk, employers are allowed to mandate that employees get vaccinated. The question then becomes should they?

The Equal Employment Opportunity Commission (EEOC) states in Question 13 of their guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (updated March 21, 2020) that employers should consider simply encouraging employees to get the influenza vaccine rather than requiring it. However, the statistics show that when employers require the influenza vaccine, 80% of the workforce will get them versus less than half when it’s just strongly encouraged.

Implementing a mandatory vaccination program is likely going to have employee relation implications. Employers need to consider how requiring employees to get vaccinated will be received by employees. The response will likely vary depending on the industry and make up of the workforce. However, even within industries where mandatory vaccine programs are common, like healthcare, there is still resistance to such a policy. Additionally, employers need to consider the logistics of providing the mandatory vaccine to their employees, like whether they will provide the vaccinations on-site or have employees take advantage of off-site options.

If employers do decide to implement a mandatory vaccination program, it’s important to ensure they have a policy in place that clearly states the expectations and rationale for the mandate, and explains how employees can request an accommodation and that no retaliation will result.

What About The (Eventual) COVID-19 Vaccine?

There is currently no vaccine for COVID-19. However, it is only a matter of time before one becomes readily available. By most estimates, we can expect a vaccine by the end of 2020 or early 2021.

Given the concerns surrounding COVID-19 and it’s spread in the workplace, will employers be able to mandate employees get vaccinated for COVID-19 like they can with the seasonal flu? It’s unclear. While it is likely that a vaccine for COVID-19 will be treated similarly to the vaccine for influenza — with the same considerations for religious and disability accommodation — the EEOC nor any other authority has provided definitive guidance.

However, in it’s guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the EEOC has noted that COVID-19 meets the direct threat standard. “Direct threat” means there is a significant risk of substantial harm to the health or safety of the person or others that cannot be eliminated or reduced by reasonable accommodation. Where that standard is met, the ADA permits broader medical inquiries and expanded controls in the workplace, which would otherwise be prohibited. This is why employers have been allowed to take the temperatures of their employees and ask questions about COVID-19 symptoms during the pandemic. Therefore, it is possible that the EEOC and other regulatory bodies may take a more permissive view of mandatory vaccination programs for COVID-19 than they do with the seasonal flu.

Nevada Association of Employers (NAE) encourages members with questions about mandatory vaccination programs or implementing policies related to COVID-19 to contact us by phone (888-398-8092) or email (info@nevadaemployers.org) to discuss their question with a member of our team.