The eagerly awaited Covid-19 vaccine may soon be ready for deployment. In anticipation, some employers may consider making the vaccine mandatory for workers.
University of Illinois Professor Matthew Finkin pointed out some of the contours of legal restrictions on mandatory vaccination programs in his recent Bloomberg Insight—religious objection, objection due to a medical condition, or objection based on ethical or ideological grounds.
While there are means to mitigate these legal risks, other risks, such as those associated with individuals with vaccine hesitancies, including those in the “anti-vax” movement, may require employer consideration before implementing a mandatory vaccine program.
Accommodations for Medical, Religious Objections
The EEOC clarified in its Pandemic Preparedness for the Workplace, which was updated in March for Covid-19 considerations, that the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 bar an employer from compelling employees to be vaccinated for influenza regardless of their medical conditions or sincerely held religious beliefs—even during a pandemic.
The EEOC updated its 2009 Pandemic Preparedness in response to the current pandemic in two ways relevant to mandatory Covid-19 vaccination: First, the EEOC acknowledged that the Covid-19 pandemic met the ADA’s “direct threat standard” that permits more extensive medical inquiries and controls in the workplace than the ADA previously allowed.
A “direct threat finding” means that having someone with Covid-19 or symptoms of it in the workplace poses a “significant risk of substantial harm” to others in the workplace. That finding permits employers to establish medical testing considerations and measures the ADA would not typically permit, such as taking employee temperatures, a measure that has been widely adopted since the pandemic’s onset.
Second, the EEOC noted in its March update that there was (then) no Covid-19 vaccine available.
Unless and until EEOC updates its guidance, the existing guidance forms the basis for any mandatory vaccination program—including the Covid-19 vaccine. Employers therefore are legally obligated to accommodate any employee who requests to opt out of any vaccination program on the basis of medical or religious objections.
Once these objections are articulated, the burden shifts to the employer to explore whether an accommodation for those objections may exist. Accommodations could include, for example, removing an employee from customer-facing or other public duties, minimizing interactions with other employees, or requiring the employee to work from home.
But in the event an accommodation is required, the interactive process requires that a discussion about those accommodations actually takes place or the employer could face liability for discrimination under the ADA or Title VII (and their state law equivalents).
‘Political’ Accommodations: The ‘Anti-Vax’ Movement
In addition to the religious and medical grounds that provide a legally statutory basis to reject vaccination, mandatory workplace vaccination programs also implicate social issues associated with vaccine hesitancies, known as the “anti-vax” movement.
While not traditionally associated with any particular political party or ideology, some states—such as California and New York—limit an employer’s ability to take adverse employment action against an employee as a result of the employee’s outside political or even recreational activities.
It is not a leap from this proposition to assert that one’s affiliation with the anti-vax “movement” is, at core, political, and that any action taken against an employee for failing to submit to mandatory vaccination as a result could result in legal liability.
What to Do if an Employee Refuses Vaccination
Mandatory workplace vaccination programs should have a built-in procedure that permits employees to opt-out for medical or religious reasons or perhaps even political or social reasons.
In addition, human resources personnel fully trained in workplace accommodations should be responsible for all communications concerning or management of such a program to avoid the risk of an inadvertent discrimination claim.
Moreover, legal should play a role if an employee refuses to participate based upon what would appear to be a “political” objection—such as adhering to the anti-vax movement. This process is better facilitated against the backdrop of updated and narrowly tailored job descriptions, which are the starting point for any essential function analysis.
Employers should also pay particular attention to recordkeeping given the ADA mandate that medical records be kept separate from general personnel files and the importance of data integrity and limited internal access to medical information.
Finally, employers should be mindful that a Covid-19 vaccine will not replace the employer’s general and pre-pandemic obligation to provide a safe working environment for employees.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jen Rubin is a member at Mintz practicing employment law. She advises clients across various industries on issues such as wage and hour compliance and maintains a robust trial practice, with a focus on class actions, trade secrets and employment mobility disputes, and the defense of discrimination, retaliation, and other disputes arising from the employment relationship.