Can employees be required to get the Covid-19 vaccine?

This article was originally published in the New Hampshire Business Review and can be found here.

Madeline Hutchings, Jim Reidy | December 16, 2020

With as many as three vaccines on the verge of being distributed, it is projected that front-line first responders, healthcare workers and vulnerable individuals in nursing homes and related facilities will be the first recipients. Then it’s expected that most Americans will have the opportunity to get the vaccine by next May or June.

But given that Covid has already created great strains on employers, many have asked if they can require their employees to take the vaccine. The short answer is:  It depends.

Some employers may indeed establish mandatory vaccination policies, on account of public health concerns related to their business fields. But they need to be mindful of whether and when they must exempt an employee from a vaccination requirement.

The Americans with Disabilities Act requires that mandatory medical examinations (which include screening procedures like diagnostic testing, as well as vaccinations) be “job-related and consistent with business necessity.”  A private employer’s ability to establish a mandatory vaccination policy depends on the nature of the business.

Employers generally may require vaccinations for employees working in high-risk environments (e.g., schools, hospitals) or with high-risk populations (e.g., in nursing homes and assisted living facilities).

Employers with mandatory vaccination policies may additionally need to accommodate an employee’s sincerely held religious belief, pursuant to Title VII of the Civil Rights Act or an employee’s disability or medical condition, in accordance with the ADA.  The Equal Employment Opportunity Commission has yet to issue specific guidance on Covid-19 vaccinations, but prior guidance, in response to the 2009 H1N1 flu, remains relevant for employers seeking to navigate these two required accommodations:

• Under Title VII, an employer must reasonably accommodate an employee whose sincerely held religious belief, practice or observance prevents him or her from taking the vaccine, unless doing so would cause undue hardship to the employer. According to the EEOC, “undue hardship” means “more than a minimal burden on operation of the business.”  To obtain an exemption on this basis, an employee’s belief must genuinely be religious; a non-religious belief is not sufficient, no matter how strong or sincere.
• Under the ADA, an employer must reasonably accommodate an employee who requests a workplace accommodation — including an exemption from vaccination — on the basis of a disability. However, an accommodation is not required when it would present undue hardship to the employer. In this context, “undue hardship” means significant difficulty or expense — a higher standard than under Title VII.  An employer also does not need to provide an accommodation if, even with the accommodation, the employee would pose a “direct threat” (i.e., a significant risk of substantial harm to health or safety) to the employee or others.

Other federal and state laws create additional legal considerations when it comes to establishing a vaccination requirement.  For example:

• The Occupational Safety and Health Act requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm. Some employees may contend an employer’s failure to require vaccinations puts employees at risk.
• If a required vaccination results in harm to an employee, an employer may be facing a workers’ compensation claim. Not requiring vaccinations or related protections may result in negligence claims.
• The National Labor Relations Act protects the right of employees to engage in concerted activity. Taking adverse employment action against employees who object to a mandatory vaccination policy might result in an unfair labor practice charge.

There are several steps employers can take to keep their workplaces safe and be protected from liability.

Adopt a vaccination policy that follows current CDC and applicable state guidelines and is tailored to the workplace. Consider the need for mandatory vaccinations, and explore the adequacy of alternatives (diagnostic testing, remote work). Engage employees in an interactive process to explain policies, respond to questions, and consider reasonable alternatives when possible.

Covid-19, in addition to being a novel virus, presents many novel workplace issues. While a vaccine is a light at the end of the tunnel, it is still important for employers to proceed with caution.