Neal F. Perryman, Chair of the Litigation Department

In the wake of the federal government’s authorization of COVID-19 vaccines for emergency use, employers across the country are questioning whether they can legally require employees to be vaccinated against COVID-19. The short answer is yes. But as with most aspects of running a business during the pandemic, there is no one-size-fits-all response, and certain exceptions may be required. This alert explores several legal considerations employers should weigh when considering their approach to this important development in public health.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised guidance to address several common questions related to the administration of COVID-19 vaccinations to employees. Although the EEOC makes clear that federal employment laws do not prevent employers from mandating COVID-19 vaccination as a condition of employment, employers must consider two categories of exemptions from any vaccine mandate: bona fide religious objections to vaccinations under Title VII of the Civil Rights Act (Title VII) and disability-related objections under the Americans with Disabilities Act (ADA). Confidentiality concerns also arise under both the ADA and the Genetic Information Nondiscrimination Act (GINA). State laws may also affect the analysis.

Disability Concerns

In responding to employees who raise disability-related objections to mandatory COVID-19 vaccinations, employers must first determine whether an unvaccinated employee poses a direct threat to the health or safety of others in the workplace. This requires an individualized assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 

If an employer determines that an unvaccinated employee poses a direct threat because the employee will expose others at work to the virus, an employer must engage “in a flexible, interactive process to identify workplace accommodation options.” This concept will be familiar to employers who have worked to accommodate employees with disabilities. Reasonable accommodations in this instance may include continuation of precautions from the height of the pandemic, such as mandatory mask-wearing, social distancing, routine COVID-19 testing, and remote work, where possible. An employer is not required to provide a reasonable accommodation if doing so would impose an undue hardship.

If a reasonable accommodation cannot reduce the direct threat to an acceptable level or imposes an undue hardship, an employer can legally exclude an employee from physically entering the workplace. The EEOC warns that “exclusion” from the workplace does not necessarily mean termination. An employer must first determine if an employee is entitled to any other right under federal or state laws, including whether an employee is eligible to take leave under the Families First Coronavirus Response Act (see summary here and here), the Family and Medical Leave Act, or the employer’s leave policies. 

It is critical to evaluate each disabled employee’s circumstances individually and to avoid stereotypical responses. For instance, the analysis of what would constitute a reasonable accommodation or undue hardship for a disabled administrative employee might differ depending on whether the employee worked in a nursing home or an accounting firm. 

Religious Concerns

As with exemption requests based on disability, an employer must consider exemptions for employees based on an employee’s sincerely held religious beliefs or practices, unless providing an accommodation would result in undue hardship for the employer. Courts have defined undue hardship differently under the ADA than under the religious protections of Title VII. A religious accommodation will present an undue hardship if it has more than a de minimis cost or burden on the employer.

The EEOC advises that an employer should ordinarily assume that an employee’s request for religious accommodations is based on a sincerely held belief because the “definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.” Generally speaking, vaccine objections that are personal, political, sociological, or economic are neither sufficient to constitute a sincerely held religious belief nor establish a need for an accommodation.

Prescreening Questions and Confidentiality

Employers should take care not to become too involved in the collection of health information related to vaccinations whether mandatory or not. The EEOC advises that the administration of the COVID-19 vaccine, including asking pre-screening questions to determine whether an employee has a medical condition that will affect their ability to receive the COVID-19 vaccine, will constitute disability-related inquiries under the ADA and trigger confidentiality obligations under GINA.

Although these confidentiality obligations are not insurmountable, as the COVID-19 vaccines become more widely disseminated and available to the general public, employers should consider requesting proof of vaccinations instead of administering the vaccine themselves.   

Navigating the myriad legal issues attendant to mandating or encouraging COVID-19 vaccinations in the workplace will be difficult even for the most sophisticated employers, particularly in this evolving legal landscape. If you have any questions about requiring or encouraging COVID-19 vaccinations, please reach out to one of the authors or another member of the Lewis Rice Labor and Employment Group.