Can You Require Your Employees to be Vaccinated?

By: Sarah Skinner, Esq, LLM

THE SHORT ANSWER:  YES.  Currently, Title VII and ADA do not prevent employers from making vaccination a job requirement.  If an employee has a medical reason to not be vaccinated, the employer must make “reasonable accommodations” for that employee.  This is also true if the employee has legitimate religious issues.  Reasonable accommodation requires the employer to find suitable ways to allow the employee to continue working.  It might mean, weekly COVID testing, masking-up, and intense social distancing.  The risk to the employee is they become ostracized and feel like outcasts.  It puts business leaders in an awkward place. 

The COVID-19 Vaccine is a Polarizing Issue.

Across the United States, governors and mayors are struggling with how to respond to the recent up-spike in COVID-19 cases from the Delta variant.  For example, North Carolina Governor Roy Cooper has made an appeal for private-sector employees to require vaccinations for employees. Companies like Red Hat, one of the latest Triangle-based employers, have hopped on board. Starting Monday, August 9^th, Red Hat is requiring all non-remote employees to be vaccinated, absent a valid medical reason for not being able to have the vaccine. Other Raleigh employees, including both SAS and Cisco, have similar policies already in place. 

The flood of businesses requiring the vaccination of non-remote employees further adds to the polarization created by the COVID-19 vaccination. While one segment of the population views the vaccine as a safe and effective way to decrease COVID cases across the country, the other segment raises concerns about reported negative side effects of the yet to be Food and Drug Administration (“FDA”) approved vaccine and does not appreciate attempts of third parties to provide input on individual health decisions. There are also people who have personal issues with vaccines and view mandates as an invasion of their privacy. Additionally, many are troubled by the slippery slope that widespread vaccination requirements may cause.  These are very sensitive issues to navigate – especially for employers.

One of the most common concerns surrounding the vaccine is its lack of FDA approval. The FDA has announced that it aims to give final approval to the Pfizer vaccine by early September. It is expected that giving the Pfizer vaccine final approval, rather than relying on emergency authorization that was granted last year, will increase acceptance of the vaccine and further assist inoculation efforts. Even after FDA approval, there will be a portion of the US population who will choose not to get vaccinated or, at the very least, will not accept interventions, government or otherwise, with this personal health decision.

Employers are caught in the middle

COVID-19 Vaccinations Considerations in the Workplace.

We have received an increasing number of calls regarding the issue of COVID-19 vaccination.  Some of these calls are from employees wondering if an employer really can require vaccination. Other calls are from employers either looking for a review of their intended vaccination policies or seeking advice on what to do if workers either refuse to be vaccinated or refuse to submit to regular COVID-19 testing in violation of currently implemented company policy.

The Equal Employment Opportunity Commission (“EEOC”) has said that federal anti-discrimination laws don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must be mindful of and comply with the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1963 (“Title VII”), and other workplace laws.

Employees with religious objections or a disability may need to be excused from the mandate or otherwise accommodated. Further, if an objecting employee is a union-represented employee, the employer may need to bargain and reach an agreement with the union before mandating vaccines.

When a vaccine mandate meets ADA and Title VII, it creates an awkward result.

Employers Need to Provide Reasonable Disabilities Accommodations for Those That Cannot get the Vaccine for Medical Reasons.

Vaccination mandates should be job-related and consistent with business necessity. Per the ADA, employers may have a workplace policy that includes requirements that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” The employer must also, however, show that an unvaccinated employee would pose a threat. “Direct threat” is defined by the EEOC as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.”

Employers should evaluate four factors to determine if a “direct threat” exists:

• 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 an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a “reasonable accommodation” may be made, such as allowing the employee to work remotely.  Reasonable accommodation does not mean whatever it takes at unlimited cost.  It requires a balanced approach. In other words, if an employee has a valid reason to refuse the vaccine, then the employee is running the risk of becoming the “kid in the bubble.”

 Though not intentional, the accommodations made to limit COVID-19 exposure in the workplace may lead to a limitation on your career development. For example, if you are the only one working remote then you have limited fraternization opportunities with your back-in-the-office peers.  At its worst, it could create a divided workforce.

In Certain Circumstances, Religious Accommodation May Be Used as a Grounds for Refusal.

Employers are required under Title VII to accommodate an employee’s sincerely held religious belief, practice or observance unless it would cause an “undue hardship” on the business. Courts have defined “undue hardship” as more than a “de minimis” or very small cost or burden on the employer. “Religion” has been very broadly defined and protects religious beliefs and practices that could be unfamiliar to the employer. Employers should assume that if an employee makes a request based on religious reasons that the requested accommodation is based on a sincerely held religious belief. If the employer is aware of facts that provide an objective basis for questioning that the request is based on a religious belief or the sincerity of the particular religious belief, the employer may request additional supporting information from the employee.

Your Company Needs a Written COVID-19 Vaccination Policy.

It is a good idea to anonymously assess the general COVID-19 vaccination consensus in your company. For example, utilization of online anonymous polling software could provide your employees with the opportunity to provide their honest opinions regarding vaccination. If you intend to require vaccination as a condition of continued employment, you should give the topic very careful consideration based on the general attitude towards vaccination in your company.

If a significant portion of your workforce will refuse to comply, you may be put in a very difficult position of either adhering to your mandate and terminating a substantial portion of your trained employees or deviating from the mandate for certain employees. If you do begin deviating from the mandate in order to hold on to certain employees, you are putting yourself at risk of discrimination claims. The important thing is, once you choose a policy, you need to stick with it.

If you plan to encourage COVID-19 vaccination in your workplace, you need to develop a written policy. If your employees are refusing to be vaccinated, find out why. The employee could have a protected objection to receiving the vaccine which requires a reasonable accommodation or just a general objection to the vaccine which does not require reasonable accommodation.

Another option is, rather than implementing mandates that could lead to difficult firing decisions, you could focus on encouraging vaccinations amongst your employees. For example, you could consider offering to pay for any employee who is not yet vaccinated to be vaccinated and offer to provide paid time off for employees to not only get the vaccine but recover from any potential side effects.

If vaccination is important for your business, instead of going straight to the nuclear option of “vaccinate or terminate,” first see how far you can get with incentivization efforts. Make an effort to understand your employees’ position on the COVID-19 vaccination (and be particularly sensitive about the issue until the vaccine has obtained FDA approval). Though increasingly unusual, it is still possible to respectfully disagree on polarizing issues.

The vaccine can become a dividing line between Americans, co-workers, even members of one’s family.  As a business leader, you need to find a balanced approach and keep your business open. 

We will continue to follow developments and update this article.