By Kathleen Jennings (firstname.lastname@example.org)
An FDA approved vaccine for COVID-19 has arrived, so employers may be wondering whether they can require employees to be vaccinated. The answer is generally yes, but should an employer make vaccines mandatory? Here are some important considerations and exemptions.
- Vaccines are medical examinations under the ADA and, if they are to be required, must be job-related and consistent with business necessity or justified by a direct threat. It is a non-brainer that healthcare employers should make vaccines mandatory due to the potential exposure of employees to COVID-19. For other businesses, they will need to balance the possibility of exposure, consequences of exposure (how many employee absences at one time can the business tolerate?), and utility of the vaccine. Will a full complement of vaccinated employees allow you to resume business as usual?
- Know your employees. How will they react to a mandatory vaccine rule? Will they comply? Are they likely to have a political objection to a mandatory vaccine rule? Will they rebel? Will they seek out a union organizer to help them rebel?
- If vaccines are mandatory, will your workers’ compensation policy cover the side effects of a vaccine if an employee experiences a reaction? Check with your carrier. This will vary state to state.
- What will OSHA require? Keep an eye on OSHA. If OSHA requires mandatory vaccines as part of an employer’s general duty to provide a safe workplace, then employers don’t have much choice; they’ll need to have a mandatory vaccine rule.
- What will company leadership do? If the company’s leaders roll up their sleeves and get vaccinated as soon as possible, this will send a message to other employees.
- Does state law require vaccines?
- Do you have a collective bargaining agreement? If yes, it must be reviewed before implementing a mandatory vaccine rule. Even if the CBA does not require that the union agree to such a rule, it is generally a good idea to give advance notice to the union before implementing such a rule.
An employer that implements a rule that requires employees to be vaccinated must build in exemptions for religion and disability.
Religion: An employee may be exempt from taking a required vaccine if vaccination violates a sincerely held religious belief. When deciding whether an employee is seeking an exemption based upon a simple disbelief in vaccination versus a religious objection that is part of a larger belief system, the courts look to the U.S. Supreme Court’s United States v. Seeger decision, which framed the the question to be asked as: “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” Deep stuff, but it basically boils down to the difference between someone who does not believe in vaccination based on statements of media figures or a general distrust of authority, and a Christian Scientist. The first will not be exempt from a vaccination requirement, while the second will be exempt. Note that courts do not look favorably on seeking documentation from a pastor as to the sincerity of a person’s religious beliefs, so do not ask for it.
If an employee is exempt from a vaccination requirement on the ground of a sincerely held religious belief, the employer may need to look at making reasonable accommodations for that employee. In the case of COVID-19, that could look like social distancing and mask requirements in the proximity of the unvaccinated employee, or the employee may work remotely, if the job can be performed remotely.
Disability: Similarly, there may be employees who may be exempt from a vaccination requirement on the basis of a disability. They may have a serious allergy to a component of a vaccine, or they may suffer from a medical condition that could be worsened by a vaccination.
An employer can ask an employee seeking an exemption from a vaccination requirement on the basis of disability for medical documentation to support the exemption. Of course, all medical information must be maintained as confidential in a file separate from the employee’s personnel file. Similar to the situation of the employee exempted by religion, discussed above, the employer may need to provide a reasonable accommodation to the exempted disabled employee.
Now is the time for employers to prepare a vaccine plan as part of a larger COVID-19 strategy.
- What approach are you going to use: are you going require vaccines for all employees, some employees, or none at all?
- If you require vaccination, are you prepared to take action, up to including discharge, against those who refuse to get vaccinated and do not qualify for an exemption?
- Will you offer incentives to convince employees to voluntarily get vaccinated?
- How will you identify those who are legally exempted from vaccination?
- What accommodations can you offer to those who are legally exempted from vaccination?
You’ve heard it a million times, but I’ll say it: the current pandemic is an unprecedented situation. The best course is to seek advice from qualified counsel as you move forward.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
©2020 Kathleen J. Jennings
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