To require vaccinations or not? That is the question.

By Vanessa Lystad

As a trying 2020 comes to an end, we see a glimmer of hope in the beginning of the new year with the release and distribution of the COVID-19 vaccine.  With the vaccine likely becoming widely available in the coming months, many employers are wondering:  Can I require that my employees get a COVID-19 vaccination?  Should I require my employees get a vaccination?  Read on to find out more.

EEOC Provides Guidance

Recently, the Equal Employment Opportunity Commission (EEOC) issued much-anticipated guidance on the topic of mandatory COVID-19 vaccination policies.  In short, the guidance indicates that employers are able to require that employees receive the vaccine, subject to certain important exceptions.

One exception is for an employee, who is prevented from receiving the vaccine due to a disability, in accordance with the Americans with Disabilities Act (ADA).  If any such employees come forward seeking an exemption from the vaccination, the EEOC’s guidance explains that the employer must first conduct an individualized assessment to determine if the unvaccinated employees would pose a direct threat to the health or safety of others in the workplace (i.e. would expose others to the virus).  In conducing this assessment, employers should consider the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.

If the employer determines a direct threat will exist, the employer should not go straight to termination.  Rather, the employer and employee should engage in the interactive process to identify whether a reasonable accommodation is available that does not pose an undue hardship (i.e. a significant difficulty or expense) on the employer.  Possible reasonable accommodations would depend on the employee’s position and the type of business, but options may include offering telework, providing additional protective equipment, or leave.  Employers are able to rely on applicable CDC recommendations and OSHA standards in determining whether an effective accommodation is possible in the circumstances.

Another exception must be for an employee, who is unable to receive the vaccine due to a sincerely-held religious belief, under Title VII.  If an employer is faced with such an exemption request, but is not familiar with the employee’s particular religious belief, the employer may request additional information to support the request.  However, the EEOC notes that employers should ordinarily assume the employee’s religious belief is sincere.  For such requests, the employer should engage in the same process noted above in determining whether a reasonable accommodation is available that does not pose an undue hardship on the employer.  Notably, though, the standard for what constitutes an “undue hardship” is much lower than that for disability accommodation requests and requires only that the proposed accommodation have more than a de minimis (or minimal) cost or burden on the employer.

After going through the required interactive process, if an employer cannot exempt or provide a reasonable accommodation to an employee, the EEOC has indicated it would be lawful for the employer to exclude (not necessarily terminate) the employee from the workplace.

At the state level, the North Dakota Department of Labor and Human Rights has issued similar guidance on the topic of employer vaccination policies.  Therefore, for small employers covered only by the North Dakota Human Rights Act, mandatory vaccination polices must still have exemptions for employees’ disabilities and sincerely-held religious beliefs to comply with state law.

Mandatory Vaccination Considerations

Although mandatory COVID-19 vaccination policies are permitted with appropriate exemption procedures in place, employers should carefully consider whether they want to implement such a policy.  A variety of legal and practical factors may help employers as they weigh the pros and cons of mandatory vaccination requirements, such as:

• Are you prepared to handle the exemption process for individuals with disabilities or sincerely-held religious beliefs? Employers considering a mandatory vaccination policy should develop a clear procedure for employees to request an exemption and for the employer to assess the exemption.
• Are you prepared to handle employees, who are not entitled to an exemption, but nonetheless refuse the vaccination? Some employees may choose not to receive the vaccination due to their personal beliefs or views.  Employers need to consider how they will address those circumstances and ensure that they do so in a consistent manner.
• Have you considered the possible reactions to the vaccination? It is unclear at this point the level of risk for a severe reaction to the vaccine for certain individuals.  Required screening questions at a workplace vaccination clinic would be considered disability-related inquiries under the ADA, and the answers to them must remain confidential.  Aside from allergic reactions, your workforce may have strong feelings about mandatory vaccination policies.  Considering those reactions may be important for employee morale and health.

If any employers are concerned about navigating these situations with a mandatory vaccination policy, an alternative is to simply encourage or even incentivize vaccination with giveaways, contests, additional PTO, or other benefits.

Takeaways

Based on recent guidance, employers are able to implement mandatory COVID vaccination policies, provided that there are means for employees to claim exemptions for disability or religious reasons.  Even though these policies are permitted, employers need to perform their own assessment of whether such a policy is best for them.

Disclaimer: These materials are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  Use of and access to these materials does not create an attorney-client relationship between the Vogel Law Firm and the user or browser.  The opinions expressed at or through these materials are the opinions of the individual author and may not reflect the opinions of the Vogel Law Firm or any individual attorney.  Under no circumstances shall the Vogel Law Firm have any liability to you for any loss or damage of any kind incurred as a result of the use of the information or your reliance on any information provided.