In the era of the COVID-19 pandemic, employers struggle to navigate persistent disruptions to the normal ways of doing business. Individuals and businesses alike crave the panacea that an effective COVID-19 vaccination might bring. But once the day of the vaccine comes—and many decision makers indicate that it is coming soon—can it really help workplaces return to pre-pandemic conditions absent a requirement to take it? Importantly, can businesses and public employers legally require their employees to be vaccinated? While the answer is complicated, vaccine mandates are possible if the employer allows certain employee exemptions. The two types are: (1) exemptions under the Americans with Disabilities Act (ADA) and (2) religious based exemptions under Title VII of the Civil Rights Act of 1964 (Title VII).
Under normal circumstances, the ADA precludes employers from requiring any type of medical examination as a condition for employment or from making any disability-related inquiries. However, when the spread of a certain disease rises to the level of a “direct threat” to the health and safety of the workplace, (in other words, when disease becomes a declared pandemic), employers may follow guidance from the Centers for Disease Control and other public health entities, and mandate such protocols as temperature checks and self-reporting of COVID-19 symptoms before they allow their employees to return to work.[1]
An employee imposes a “direct threat,” according to the EEOC, based on the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.[2]
However, this loosening of ADA-related restrictions for medical inquiries in the workplace due to the “direct threat” of a pandemic does not allow the employer to enforce vaccination mandates for everyone.
Regardless of COVID-19 being categorized as a “direct threat” to workplace health and safety, the EEOC has issued guidance that denies the ability of an employer to compel all of its employees to receive a COVID-19 vaccine when those employees assert valid disability-related or religious liberty-related concerns or objections.
What Can Employers Do Now?
Nonetheless, employers who allow for these exemptions can have a vaccination policy. In order to qualify for exemptions to that policy, employers may require objecting employees to provide sufficient paperwork to justify their exemption from vaccination. In fact, some courts will even uphold employee terminations when employees fail to fill out or attach appropriate documentation to an exemption request form.[3] Employers can also require proof of the sincerity of religious liberty-based objections to vaccinations.
Also, if future federal or state laws or regulations require the COVID-19 vaccination in certain industries or fields, religious liberty-based objections to vaccination under Title VII and the U.S. Constitution may hold even less weight. This is due to a line of cases citing to Jacobson v. Massachusetts, in which the Supreme Court of the United States upheld a compulsory vaccination law in Massachusetts “as a valid exercise of the state’s police power, rejecting the plaintiff’s claim that a law requiring children to be vaccinated as a condition to attending public or private schools violated” constitutional protections.[4]
Regardless of what future laws or regulations might come, now is the time for employers to start examining their own vaccination policies according to the needs of their specific business or industry. The Sands Anderson employment team stands ready to help craft a robust vaccination policy for any employer attempting to navigate the changing landscape of employment law and regulation during a pandemic while simultaneously protecting the health of their employees and clients/customers alike.
Our Labor and Employment team is ready to answer any of your questions. Contact us today!
[1] See 29 C.F.R. § 1630.2(r).
[2] See “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” EEOC, (referencing 29 C.F.R. § 1630.2(r); 29 C.F.R. pt. 1630 app. § 1630.2(r)).
[3] See Chmura v. Monongalia Health Sys., 2019 U.S. Dist. LEXIS 134373 1, 3-7 (N.D. W.Va. 2019).
[4] See F.F. v. State of New York, 114 N.Y.S.3d 852, 860-61 (N.Y. Sup. Ct. 2019) (citing Jacobson v. Massachusetts, 197 U.S. 11, 25-27, 38, 25 S. Ct. 358, 49 L. Ed. 643 (1905)).