COVID-19 Vaccination Policies in the Workplace

May 19, 2021

Can Employers Require Mandatory Vaccines?

As COVID-19 vaccines [1] become more widely available, some employers are considering implementing mandatory COVID-19 vaccination policies. COVID-19 vaccination policies are perceived as opportunities to get businesses back to “normal” and to get employees back to work. However, these policies do come with risk. Specifically, if an employer decides to implement a mandatory vaccination policy, the employer must be aware that an employee has the right to refuse to comply.

Currently, there are no federal, state, or local laws that require employers to implement mandatory vaccination policies. Instead, employers have complete discretion to choose whether or not to implement such a policy. If an employer does elect to require its employees to be vaccinated against COVID-19, employers must bear in mind that they still have an obligation to adhere to existing laws applicable to the workplace, as summarized below.

Equal Employment Opportunity Commission (EEOC) Considerations

As of March 31, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) [1] has provided guidance to employers advising that they could likely require their employees to be vaccinated against the COVID-19 virus. According to the EEOC, employers must be careful not to implement policies that will violate Title VII, the ADA, and other applicable state or local laws. [2]

1.       Religious Exemption Under Title VII

Under Title VII, an employer must accommodate an employee’s sincerely held religious belief, practice, or observance. [3] Once an employer receives notice of its employee’s sincerely held religious belief, practice, or observance, the employer must provide the employee a reasonable accommodation unless it would pose an undue hardship to the employer.  An undue hardship is “more than a de minimis cost” to the operation of the employer’s business (a lower threshold than the ADA, which is discussed below). Further, the EEOC recommends that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” [4] However, if there is an objective basis for questioning, the employer may make further inquiry of the employee. Failure to adhere to Title VII may result in the employer facing federal lawsuit against the employer for damages and/or equitable relief.

2.       Medical Exemption Under the ADA

Likewise, employers are subject to the Americans with Disability Act (“ADA”) and are therefore obligated to provide a requesting employee with an accommodation for medical reasons.[5] Under the ADA, employers are allowed a safety-based qualification standard that may include a vaccination requirement.[6] However, employers must consider an employee’s recognized disability or medical reason for refusal to comply with this requirement.

If an employee refuses compliance and requests an accommodation, an employer may evaluate whether a reasonable accommodation will cause the employer undue hardship. “Undue hardship” is defined as “an action requiring significant difficulty or expense, when considered in light of the factors.” 29 CFR 1630.2(p). In examining if an employer discriminatorily denied a request for an accommodation courts will look into factors such as: (1) the nature and cost of the accommodation, (2) the financial resources of the business, (3) the overall size of the business, and (4) the operation of the business, including the composition of the workplace. 29 C.F.R. 1630.2(r). If an employee refuses compliance and requests an accommodation, an employer can request documentation from the employee’s medical provider. Upon reviewing such documentation, the employer and employee can begin the interactive process of fashioning an accommodation that works for both parties. As mentioned previously, failure to engage in this process and make a good faith effort to provide an accommodation could result in the employer facing a federal lawsuit.

Department of Fair Employment and Housing (DFEH) Considerations

On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) updated their guidance regarding COVID-19. Currently, the DFEH refers to the Fair Employment and Housing Act (“FEHA”) regarding mandatory COVID-19 vaccination policies.  For employers with 5 or more employees, an employer must not discriminate against its employees based on a protected characteristic, such as religion or disability. [7]

Employers must be cautious when implementing mandatory vaccination policies and ensure that they are respecting their employees’ civil rights. If you have any questions regarding your company’s policies, contact Tyler Law LLP. Our attorneys can help advise your business on best practices.

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