Several businesses — including Aldi, Dollar General and Instacart — have recently announced plans to offer employee vaccination incentives. As the vaccine becomes readily available, other employers will likely express interest in encouraging their employees to get vaccinated. Some may make it a requirement, but could find that enforcing a mandatory vaccination policy requires specific adjustments to reap the benefits of a vaccinated workforce, while remaining legally compliant.
If regional health authorities endorse vaccination as their official recommendation for protecting citizens from Covid-19, it could create a standard (or at least a general expectation) that employers will encourage or require vaccination to ensure workplace safety.
Additionally, some businesses may be concerned that they could face negative outcomes if they don’t require employees to be vaccinated. These concerns range from loss of productivity due to employee sick days to facing lawsuits resulting from coworkers or customers testing positive for Covid-19 after contact with an unvaccinated employee.
Generally, employers have the right to establish mandatory vaccination policies so long as they make reasonable accommodations for employees who refuse. If an employee refuses to get vaccinated, and the employer determines that the unvaccinated employee poses a “direct threat” (i.e., that the unvaccinated employee would cause significant risk of substantial harm to the health or safety of the employee or others), that individual could potentially be terminated. Certain exceptions, though, could apply.
The Americans with Disabilities Act (ADA), which prohibits discrimination based on disability, could apply if an employee cannot receive the vaccine for health-related reasons. If an employee claims to be unable to be vaccinated for medical reasons, the employer should first request supporting medical documentation and then determine if there is a direct threat to the workplace as a result of the employee not receiving the vaccine.
Recently released guidance from the U.S. Equal Employment Opportunity Commission suggests that employers should evaluate the following factors to determine whether an employee who is unable to be vaccinated poses a direct threat in the workplace: the duration of risk, nature and severity of potential harm, and the imminence and likelihood potential harm will occur.
Even if an employee poses a direct threat, employers must engage in an interactive process with the employee to determine if there is a reasonable accommodation that eliminates the threat prior to excluding them from the workplace. The interactive process is highly fact-specific and will depend on the individual’s job responsibilities, the work environment, and other factors such as the prevalence in the workplace of employees who have already received the vaccination.
Although pregnancy alone is not a disability under the ADA, employers should also be prepared to make similar accommodations for pregnant employees, especially considering uncertainty or personal concerns related to the vaccine’s effect on pregnant women.
Employees may also refuse to be vaccinated on the grounds that receiving a vaccine conflicts with sincerely held religious beliefs. Protections granted by Title VII of the Civil Rights Act of 1964 require covered employers to reasonably accommodate an employee’s religious beliefs and practices, unless doing so would cause an undue hardship.
Much like the ADA analysis, under Title VII, once an employer is on notice that an employee’s sincerely held religious practice or belief prevents them from receiving the Covid-19 vaccine, the employer may be required to make reasonable accommodations to allow the individual to continue performing their duties — unless those modifications would cause an undue hardship. An accommodation that compromises workplace safety may present an undue hardship.
Because the vaccine is new and its application within work settings is uncharted legal territory, exactly how the undue hardship exception will be applied in such instances remains to be seen. For this reason, companies should find ways to mitigate the risks that unvaccinated employees could pose. If the last year has taught us anything, it is that employers are more adaptable and resilient than ever. The increasing availability of the vaccine does not mean employers should stop using unconventional solutions to retain talent despite the ongoing threat of the virus.
Establishing a clear, well-communicated vaccination policy will help ensure that an employer’s inoculation approach corresponds with federal workplace laws.
Employees who hope to opt out of the requirement should be permitted to apply for an exemption. The process should be structured to be compliant with any applicable health information and other privacy protection standards under the ADA. Exemption paperwork should, for instance, be routed through the appropriate channels, such as the HR department, instead of the employee’s immediate manager. Vaccination records should be kept in a medical file, not a personnel file.
When accommodations for an unvaccinated employee are necessary, companies will need to carefully examine the overall work environment to determine the best course of action. If an unvaccinated individual will be in close contact with people, and closing an office door or wearing a mask wouldn’t significantly reduce the threat of infection, the simplest solution may be to allow the employee to work from home.
For a while, the risk analysis process will involve a constantly moving target, depending on how many employees have received both required vaccine injections and how the general public’s vaccination rates unfold. The situation doesn’t have to be permanent, however. Ten percent of an organization’s staff opting out of vaccination for workplace law-protected reasons may initially seem daunting, but those employees won’t pose the same risk when 90 percent of the staff has been vaccinated.
Emily H. Mack is a partner in Burr & Forman. She concentrates her practice on labor and employment, education law and complex litigation matters. She assists businesses and individuals in matters involving retaliation, discrimination and hostile work environment claims.