Those who remain skeptical about the COVID-19 vaccine or are refusing to get inoculated against the virus will soon discover that, in most cases, their employer can require vaccination as a condition of continued employment. According to guidance from the Equal Employment Opportunity Commission (“EEOC”), employers may terminate or refuse to hire individuals who don’t get the vaccine, except when doing so would violate the Americans With Disabilities Act (“ADA”) or infringe on an employee’s sincerely held religious beliefs.
Although, in its guidance, the EEOC does not explicitly state that mandatory vaccination is lawful, the EEOC does state that an employer can make an employment offer or condition continued employment on the employee not posing “a direct threat to the health or safety of individuals in the workplace.” This can include requiring an employee to get a vaccination. However, if an individual has a condition that makes the vaccination a threat to his or her own health, the employer must pursue additional steps before taking an adverse employment action against that individual.
Specifically, the employer must demonstrate that the presence of the unvaccinated worker would create “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation, such as remote work or a leave of absence.” To determine whether an unvaccinated employee represents such a “direct threat,” the EEOC advises employers to conduct an “individualized assessment” of the following 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. In its guidance, the EEOC has stated that “a conclusion that there is a direct threat would include a determination that an unvaccinated individual would expose others to the virus at the worksite.”
Even where there is a “direct threat,” however, an employer must still comply with the ADA’s requirement that the employer make a “reasonable accommodation” for those whose disability makes vaccination a threat to his or her own health. An employer cannot exclude an employee from the workplace for not getting vaccinated “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so that the vaccinated employee does not pose a direct threat.”
In addition to the protections afforded by the ADA, Title VII of the Civil Rights Act of 1964 may shield an employee from employer-mandated vaccination if the shot would be contrary to his or her “sincerely-held religious beliefs.” The burden rests on the employee to demonstrate the sincerity and basis of his or her religious objections to the vaccine. However, just as those with disabilities must be afforded “reasonable accommodation” in the face of a vaccination mandate, employees who meet their burden under Title VII must be afforded the same accommodation unless doing so would cause the employer “undue hardship.” It is generally easier for employers to show “undue hardship” for purposes of Title VII than it is under the ADA. To show “undue hardship” under Title VII, an employer must simply show that the burden imposes “more than a de minimus cost or burden.”
Other issues arise in connection with employer-mandated vaccinations. For example, is an employee entitled to be paid for the time spent getting inoculated? Although the U.S. Department of Labor has not weighed in on the issue, some states have. The Illinois Department of Labor recently determined that if an employer requires employees to get vaccinated, the time the employee spends obtaining the vaccine “is likely compensable, even if it is non-working time.”
Another issue surfaces when an employer, rather than mandating vaccination, incentivizes employees to get vaccinated — such as providing cash bonuses or other benefits. Here, too, there is some legal risk. For example, there is a question as to whether providing incentives or privileges to vaccinated individuals will have a “disparate impact” on employees with disabilities. Because such employees may be unable to receive the vaccine, they may not have the same opportunities for incentives as non-disabled employees.
Please contact Norm Finkel with any questions at (312) 648-2300 or at Norm.Finkel@SFBBG.com.