How Employers Can Legally Require That Employees Be Vaccinated Against COVID-19
Many employers eager to fully restart in-person operations have found themselves in a state of limbo, unsure as to whether they can require employees to be vaccinated against COVID-19.
Thankfully, in May 2021 the Equal Employment Opportunity Commission (EEOC) issued guidance making it clear that employers can require employees to be vaccinated in order to reenter the workplace, and also offer incentives to encourage workers to be vaccinated.
However, implementing a mandated vaccination program is no simple matter. Employers should seek assistance from experts in HR process design, automation and management practices.
The implementation and management of a COVID-19 vaccination policy requires:
- Making decisions on vaccination strategy
- Developing policies and communication templates
- Managing requests for accommodation
- Addressing employee questions and concerns
- Evaluating vaccination requirement strategies
- Updating policies on accommodation to address new vaccination requirements
- Giving employees direction on requesting medical or religious accommodations
- Determining if accommodation requests fall under ADA or Title VII obligations, and whether an employee is eligible for accommodation
- Creating and managing a case file for each request and documenting all actions
- Managing the interactive process between employer, employee, and health care provider or religious leaders
- Helping to determine whether an accommodation request poses a direct threat, and documenting the factors used in making that determination
- Drafting accommodation approval and denial letters
- Informing managers and supervisors of lawful requirements regarding the disclosure of accommodations and retaliations against employees requesting accommodation
- Reviewing job descriptions to confirm they include mention of mandatory vaccination requirements
- Periodically reviewing and modifying the accommodation evaluation process as necessary
If you have questions, you may contact us to learn more about how to craft a mandated COVID-19 vaccination program customized to suit the needs of your workplace and employees. Or you may read on to learn more about the complexities of implementing such programs.
Recent legal precedents have made it clear that employers can require that employees be vaccinated—but there are limitations.
In June 2021, a federal District Court in Texas dismissed a lawsuit against Houston Methodist Hospital, filed in April by 117 employees suing to block the hospital’s policy, “requiring employees be vaccinated against COVID-19.” The Texas court was blunt in its dismissal, stating that the hospital’s vaccination requirement did not represent, “an exception to at-will employment,” and that the plaintiff named in the suit could, “freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”
For the most part, the case law is rather cut and dried—private employers can require their workforce to be vaccinated to enter the worksite.
However, it’s in the details where this gets complicated, and where employers need guidance from HR experts. This is because employers with 15 or more employees are required to provide reasonable accommodations for employees who qualify for exemptions from mandatory immunization policies under Title 1 of the Americans with Disability Act (ADA) or Title VII of the Civil Rights Act. This is the single biggest hurdle which employers must navigate when mandating employee vaccination.
Employers must be strategic in designing, implementing, and managing applicable policies to ensure that they do not fall afoul of employees’ legal rights. For instance, such policies must include language which directs employees on how to request appropriate medical or religious accommodations.
Below, we outline the process by which employers can evaluate accommodation requests from employees requesting an exemption from mandatory vaccination policies under the ADA, followed by an overview of how the process applies to those requesting a religious exemption.
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Employees with qualifying disabilities must be afforded accommodations under the ADA unless doing so creates an undue hardship.
Title I of the ADA requires employers to provide reasonable accommodations to those with qualifying disabilities, unless their employer can demonstrate that such accommodations create an undue hardship for the employer, or threatens the safety of fellow employees or other persons in the workplace.
Employers must take care to recognize when an employee is requesting an accommodation for a disability—there are no prescribed forms or verbiage that employees must use to exercise their rights under the ADA.
When a request for accommodation is made under the ADA, employers must engage in what is called an “interactive process.”
The interactive process can be in written or verbal form but having documentation of the request and dialogue is highly advisable. This process involves a sharing of information between the employee, their health care provider, and the employer, to communicate (1) the nature of the employee’s disability, (2) the length of time for which an accommodation is needed, and (3) how the vaccine requirement conflicts with the employee’s disability.
If an employer refers to an employee’s health care provider for information, the employer must previously secure a written medical release, or documented permission from the employee. Without either of these, a health care provider may not disclose any information about an employee’s disability.
An employer must then determine whether an employee has an ADA-covered disability, and whether the requested accommodation creates a hardship or threatens others.
With information on an employee’s disability and requested accommodation in hand, they can then evaluate the merits of the request.
First, they must determine whether the employee is protected under the ADA. (It should be noted that employers are only required to consider the disabilities of an employee—not the disabilities of family members or other members of an employee’s household). An employer must identify whether the employee has a disability, which is defined in this context as a physical or mental impairment that substantially limits one or more life activities of an individual, or when such a person has a recorded history of having an impairment, or is regarded as having an impairment—the nuances of these distinctions make it advisable that you consult with an HR or legal expert with applicable experience.
Moving on, defining the meaning of disability in turn raises the question of how the term “impairment” is defined. In the case of the ADA, an impairment is a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, or any mental or psychological disorders. We recommend the Job Accommodation Network’s reference guide on the definitions of disability and impairment to explore these topics further.
While making the above determinations are complex, it may be easier than expected to determine whether an employee has a qualifying disability, as the ADA provides a list of conditions which are known to qualify.
If an employer has obtained information from the employee’s health care provider as to the nature of the disability and why a vaccination is inadvisable, this provides valuable guidance in determining whether the employee is, as defined under the ADA, a “qualified individual with disability,” whose disability means that they may suffer an adverse reaction to a COVID vaccine.
Employers must then identify whether accommodations can be made for an unvaccinated employee, or whether doing so would create an undue hardship or pose a threat to others.
The ADA requires that qualifying employers must provide reasonable accommodations to employees with disabilities if needed to apply for a job, perform their job, or enjoy the benefits and privileges of employment.
The EEOC has helpfully defined some reasonable accommodations which might be provided to an employee with a disability which prevents them from being vaccinated, including:
- Requiring the employee wear a face mask
- Requiring the employee to work at a safe distance from coworkers and other persons
- Having the employee work a modified shift
- Giving the employee periodic tests for COVID-19
- Allowing the employee to telework if possible
- Reassigning the employee to another position
- Improving ventilation systems in the workplace
However, an employer may be exempted from providing accommodation if the requested accommodation creates an “undue hardship.”
Courts have ruled that an “undue hardship”—in the case of ADA-protected employees—is when an employer would be faced with “significant difficulty or expense.” With the complications which have arisen in the wake of the COVID-19 pandemic, the EEOC has found that accommodations which previously would not have posed an undue hardship may do so now. Accommodations may pose undue hardships to employers due to the difficulty of:
- Conducting needs assessments
- Acquiring necessary items
- Delivering/receiving necessary items
- Providing temporary assignments
- Hiring temporary employees for specialized positions
This does not mean that an employer can reject any accommodations which impose an expense. The cost of the accommodation must be considered alongside the business’s current operating budget. In many instances, employers and employees can work together to identify alternative accommodations which impose little or no cost.
However, employers may also be exempted from providing accommodations to ADA-covered employees if doing so poses a “direct threat” to other employees or non-employees present in a workplace. This requires determining whether an unvaccinated employee poses a direct threat to others, and whether a reasonable accommodation would mitigate the threat.
Given the nature of the COVID-19 pandemic, answering this question is extremely complex. No two workplaces or employee situations are the same:
- Is the workplace indoors or outside?
- How ventilated is the workplace?
- How frequently does the employee interact with others?
- How many other employees and other present persons are vaccinated, partially vaccinated, wearing masks, or undergoing screening?
- How feasible is it for employees to practice social distancing?
- Are there employees or other persons who would be especially vulnerable to infection?
Referring to the Centers for Disease Control and Prevention’s frequently updated guidance for workplaces and businesses can help employers understand the risk level of their workplace.
In addition, the risk posed by COVID-19 in a given region, and in specific working environments therein, can vary over time. A region may have very little COVID-19 spread, making local workplaces safer, while another region may experience a significant outbreak, or be heavily impacted by an especially infectious COVID variant, which would then raise the level of risk present in local workplaces.
An employer’s HR department must consider all the above when identifying an appropriate accommodation for a disabled employee, or whether any such accommodation poses an undue hardship to the employer or a direct threat to other persons. If HR believes that accommodation poses an undue hardship or a threat, this must be scrupulously documented.
To determine whether an accommodation poses a direct threat to the health of others, the EEOC recommends that an employer’s HR team conduct an individualized threat assessment of four factors in determining whether a direct threat exists:
- The duration of the risk
- The nature and severity of potential harm
- The likelihood that potential harm will occur
- The imminence of potential harm
Once an employer has made a decision on accommodation, they must clearly notify the employee of the decision.
At this point, an employer’s HR department must notify the employee in writing as to whether the requested accommodation has been approved or denied. If the request is denied, the employer should communicate and document any alternative accommodations that can be provided.
To protect the interests of employer and employee alike, HR must maintain:
- All copies of employee ADA accommodation requests
- Supporting documentation
- Any denials of accommodation
All the above items must be kept in a file separate from the employee personnel file to ensure compliance with the confidentiality requirements of the ADA.
Supervisors and managers should be apprised of the fact that it is illegal to disclose requests for accommodation, or to retaliate in any way against employees who request an ADA accommodation.
Employees also have a legal right under the Civil Rights Act to request an exemption from vaccine mandates due to a religious belief—such requests must also be evaluated via the above process.
Under Title VII of the Civil Rights Act, employers must accommodate objections to vaccination due to “sincerely held” religious beliefs, unless such an accommodation poses an undue hardship or direct threat.
As with ADA accommodation requests, when an employee requests an exemption from a vaccination mandate for religious reasons, an employer should initiate the interactive process with the employee, as well as their religious leader if possible. The employee should be requested to provide an explanation of their religious beliefs and why they conflict with the employer’s vaccination requirement. If possible, supporting documentation from their religious leader should also be obtained.
Because legal precedents have drawn a very broad definition of religion and religious beliefs, employers should err on the side of caution and assume that the employee’s request for accommodation is based on their sincerely held beliefs. However, if an employer has clear evidence or an objective basis for believing that this is not the case, they should obtain guidance from legal counsel before proceeding any further. Making a case as to whether an employee is insincere in citing a religious objection is an extremely complicated matter requiring legal guidance.
Once an employer has completed the interactive process, HR must then determine what reasonable accommodations can be made, or if such an accommodation poses an undue burden or direct threat to others. This evaluation is largely the same as with such requests under the ADA. However, under Title VII, court rulings have defined undue hardships created by religious accommodations as being those which pose “more than de minimis” cost or burden to the employer. Consequently, the bar for arguing that an accommodation poses a hardship is a bit lower.
Once a determination is made, approval or denial of a religious accommodation request must be communicated to an employee by HR in writing. All relevant documentation must be stored in a file separate from the employee’s personnel file, to protect sensitive religious preference information. Managers and supervisors must be trained as to the sensitivity of this information, and the unlawfulness of disclosing it or retaliating against such employees.
Employers who cannot grant an accommodation may bar an unvaccinated employee from the workplace, but this does not necessarily warrant termination.
The EEOC has stated that if an employee cannot be vaccinated due to a disability or sincerely held religious belief, and a reasonable accommodation is not possible, it is legal for an employer to exclude an employee from the workplace. This does not mean that an employer can automatically terminate employment. Before considering termination, an employer must determine if any other rights apply under Equal Employment Opportunity (EEO), federal, or state laws.
However, requests for exemption from vaccine mandates due to an employee’s personal preference are not protected by law. If it is found that an employee’s request is personal in nature, an employer should clearly communicate the company’s vaccination mandate policy, and the consequences for failing to comply with it.
It should be noted that this article is not a comprehensive guide which enables employers to independently evaluate requests for ADA, religious, and personal accommodations for exemption from COVID-19 vaccine mandates.
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Many businesses and organizations have been successfully sued for violating employees’ rights under the ADA and Civil Rights Act, despite their attempts to do so in good faith. It is all too easy to not collect proper documentation, make an error in judgment, or misinterpret state or federal law. You should consult with Employer’s Guardian or another HR services company with relevant experience in crafting employee vaccination programs and policies.
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