Under federal and state law, employers are under a duty to provide healthful workplaces. It seems logical that employers would look to adopt policies requiring vaccinations to try to eliminate disease, such as Covid-19 when a vaccine is available, but legal issues abound.
Employers may be liable under state law to employees and customers who are infected by workers when legally adequate precautions against infection have not been taken.
Moreover, under federal law, employees can refuse to perform work if they have a reasonable apprehension of death or serious injury when there is a reasonable belief that no less drastic alternative to refusing to perform that work is available.
Under the National Labor Relations Act, a group protest in a non-unionized workplace over unhealthful conditions, including a walk-out, would be statutorily insulated against discipline or discharge; a walk-out in a unionized workplace, if engaged in good faith because of abnormally dangerous working conditions, would not be a strike in violation of a no-strike pledge in a collective bargaining agreement.
Legal Objections to Workplace Vaccinations
To the extent the communication of a disease can be eliminated or much reduced by inoculation by a safe and effective vaccine, it follows that employers would adopt policies requiring employees be vaccinated. Employers may also wish to reduce their medical insurance cost and to reduce the possibility of lost work time and sick leave. This, too, could entail a mandatory vaccination.
Even so, such actions may confront legal challenges on the part of applicants and incumbent employees based on:
- religious objection,
- objection due to the applicant or employee’s specific medical condition, or
- objection based on ethical or ideological grounds.
The legal bases for these objections are founded respectively on Title VII’s protection of religion, the Americans With Disabilities Act’s protection of the disabled, and on public policy. There is very little case law thus far, but what little there is points the path through the legal thicket.
Under Title VII of the Civil Rights Act, the protection of religion includes all aspects of religious observance, practice, and belief, unless an employer demonstrates that it is unable reasonably to accommodate the applicant’s or employee’s objection without undue hardship. In the matter of sabbatarian practice, anything more than a de minimis hardship would be “undue.”
At the threshold, a religiously grounded objection to vaccination must be the product of an authentic and sincerely held belief, which can be contested. If that threshold is crossed, the employer must seek to accommodate the employee’s objection.
In a recent case, a first responder, a firefighter, objected to vaccination for TDAP—tetanus, diphtheria, pertussis (whooping cough). The employer did not contest the sincerity of the employee’s religious belief and offered him two options: assignment away from first responder duties at no loss of pay and with the employer absorbing the necessary training cost; or, remaining in his current job while wearing a respirator at all times, keeping a log of his temperature, and submitting to medical testing.
Neither of these were acceptable and the employee was terminated. The U.S. Court of Appeals for the Fifth Circuit held that as the accommodations offered were reasonable the discharge was not wrongful.
Here, too, the laws impose a duty reasonably to accommodate an employee’s disability. For example, a person might have a medical condition that reacts detrimentally to vaccination. Were that condition to be a statutory disability the duty to accommodate would be triggered.
The U.S. Court of Appeals for the Eighth Circuit concluded, in the case of an employee who objected to being vaccinated for measles and mumps because of the potential medical reaction, that the employee’s medical condition was of “garden-variety allergies.” As these did not amount to a statutory disability, no duty to accommodate applied.
Ideological or Ethical Objections
There may be employees who object to vaccination on the assertion that the manner in which the vaccine is produced, for example, by the use of biological material such as eggs, or the working conditions under which it is produced are morally wrong. Consequently, a court could prove sympathetic to such ethically grounded reservations.
However, even were a court to be open to the claim in principle, it is unlikely that a refusal of vaccination on these grounds would prevail when the requirement of vaccination is founded in a demonstrable need to protect the health of the worker, her coworkers, and the general public to which vaccination is proven safely and effectively to address and no reasonable accommodation to the objection was feasible.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Matthew Finkin is a professor of law at the University of Illinois College of Law. He is the author or editor, singly or in collaboration, of 11 books, including Bloomberg Law’s Privacy in Employment Law, and numerous professional publications. He is a member of the National Academy of Arbitrators, the American Law Institute, and the College of Labor and Employment Lawyers.