As states lift their stay-at-home orders and employees begin to return to the workplace, businesses are determining how to best keep workers healthy.
To assist with this, the Equal Employment Opportunity Commission has updated its guidance on Covid-19, recently determining that employers could screen workers for active infections prior to their return without violating federal law. Yet, the EEOC also cautioned that these screening tests may produce inaccurate results and do not protect against the risk that an employee could later become infected with the virus.
The EEOC has not yet issued guidance on the use of antibody tests that indicate if an individual was previously infected with Covid-19, and there is still much unknown about how protective and long-lasting any immunity to Covid-19 will be. While there is currently no vaccine for Covid-19, employers do have a legal and effective means of protecting employees from serious respiratory illness in the workplace—adopting mandatory influenza vaccination policies.
Clearly, influenza vaccines will have no impact on Covid-19, but importantly will significantly decrease the likelihood that another contagious respiratory illness will be circulating at high levels in the workplace at the same time. Both the Centers for Disease Control and Prevention and the World Health Organization have explicitly expressed concern that Covid-19 cases could surge again in the fall, coinciding with the next flu season and leading to a dangerous crisis situation.
Influenza can be deadly and the CDC estimates that during the recent 2019-2020 season between 24,000 and 62,000 Americans died from influenza. Vaccines are not failproof, but they are safe and effective, reducing both the likelihood of infection and the severity of illness in those who do become infected. The CDC recommends all adults get an annual flu vaccine. Yet according to the most recent data on the CDC website, only 45.3% of American adults were immunized during the 2018-2019 flu season.
Employers have significant legal flexibility in adopting mandatory employee vaccination policies which, unlike government mandated policies, are not subject to constitutional restrictions. Yet while employers have the legal right to adopt these policies, few businesses outside of health care have done so. This is partly due to the strength of the anti-vax movement and fears that employees would find mandatory vaccination policies an unacceptable intrusion on their personal lives.
Equally important are employers’ concerns over potential liability for disability or religious discrimination. Yet these concerns are largely unfounded since employers are required to provide only minimal medical and religious exemptions to mandatory influenza policies under federal law.
The most common reason why employees request a medical exemption is an allergy to the flu vaccine. Yet the federal law mandating medical accommodation in the workplace, the Americans with Disabilities Act, only requires accommodation of an employee with a “disability” and it is unlikely that an allergy to the flu vaccine would be considered a disability that qualifies an employee for protection under this law.
Further, disability accommodation of employees is only required when it can be done “without significant difficulty and expense.”
In the midst of the Covid-19 pandemic, with its severe health and economic implications, it is unlikely that medical exemptions will be required under federal law. Employers should provide medical exemptions when truly needed and it is safe to do so, while at the same time recognizing they are unlikely to be mandated under the ADA.
De Minimis or Minimal Cost
It is even less likely that federal law would require employers to accommodate employees requesting a religious exemption to the flu vaccine. Religion is defined very broadly under Title VII of the 1964 Civil Rights Act, the federal law which prohibits religious discrimination in the workplace. Yet employers are not required to accommodate religious employees if doing so involves more than a de minimis or minimal cost.
This is illustrated by a case out of the U.S. Court of Appeals for the First Circuit involving an intake worker at Children’s Hospital Boston with a religious objection to the flu vaccine. When the hospital was unwilling to accommodate her, and she was ultimately fired, the court sided with the hospital, determining that permitting the employee to remain at work unvaccinated would lead to more than a de minimis cost.
This particular case involved an employee whose job required patient contact, but it stands for the proposition that employers are not required to incur more than a de minimis cost when granting religious exemptions to the flu vaccine.
As with medical exemptions, employers can and should provide religious exemptions when feasible, while recognizing that courts are unlikely to require exemptions, particularly in the midst of the Covid-19 pandemic.
Despite the law, in recent years, the EEOC has opposed influenza vaccination policies by private employers that do not include significant religious exemptions. Importantly, the EEOC has been unsuccessful in winning these cases, but in some instances has successfully pushed employers into settlement agreements. Yet these cases all occurred prior to the Covid-19 pandemic, and it is hoped that the EEOC will rethink its position on mandatory influenza vaccination policies in the midst of one of the worst public health and financial crisis in recent history.
Private businesses have significant legal freedom in adopting mandatory influenza vaccine policies, and in the midst of the worst pandemic in a century, the government should not be discouraging this right.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Debbie Kaminer is a professor of law at the Zicklin School of Business, Baruch College, City University of New York. She teaches and publishes on issues related to employment discrimination and religion and the law.