Can Employers Require Their Employees To Get The COVID-19 Vaccine?

4/20/2021
Gallagher Sharp LLP By Gallagher Sharp LLP

According to guidance issued by the Equal Employment Opportunity Commission (EEOC), private employers may require employees to receive the COVID-19 vaccine before returning to work; however, employers may need to make exceptions for employees who have disabilities or religious-objections.

Disability-Related Accommodations

Employees who have a disability that prevents them from receiving the vaccine may request an exemption from a mandatory vaccination policy.

  1. Does the employee pose a direct threat??

Under the ADA, employers may require that an employee not pose a “direct threat,” which is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by or reduced by reasonable accommodation.”  In March 2020, the EEOC declared that COVID-19 poses a direct threat.  To determine if a direct threat exists, employers should conduct an individualized assessment of 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.

A determination that an individual presents a direct threat would “include a determination that an unvaccinated individual will expose others to the virus at the worksite.”

  1. Is there a reasonable accommodation that can eliminate or reduce the direct threat that the employee poses?

If an employer concludes that an employee poses a “direct threat,” the employer should next explore whether there is a reasonable accommodation that would eliminate or reduce the risk posed by the unvaccinated employee.  For example, could the unvaccinated employee work remotely?Employers Requiring The COVID-19 Vaccine

An employer is not required to provide an accommodation that creates an undue hardship.  In determining whether an accommodation creates an undue hardship, the EEOC direct employers to consider the number of employees who have already been vaccinated and the amount of contact between unvaccinated employees.

If, and only if, there is no reasonable accommodation to address the direct threat to the workplace may the employee be excluded from the workplace.

Religious Accommodation

Employees who have sincerely held religious beliefs that conflict with vaccinations may also be entitled to an exemption from a mandatory vaccination policy.  Employers must provide a reasonable accommodation unless it would pose an “undue hardship” on the employer.  Courts have defined “undue hardship” under Title VII as a lower burden than under the ADA.  Employers need only show that the religious accommodation has more than a de minimis cost.

Other Accommodations

In two federal cases, employees have sued their employers for adopting and enforcing mandatory vaccination policies:

  • Legarreta v. Macias, (District of N. Mex., Case No. 2:21cv00179, filed 2/28/21)
  • California Educators for Medical Freedom et al. v. The Los Angeles Unified School District (C.D. Cal., Case No. 21-CV-02388, filed 3/17/21).

In both cases, the employees claim that because the Federal Drug Administration approved the COVID-19 vaccines under an emergency use authorization (EUA), rather than pursuant to the traditional approval process, mandatory vaccination violates federal law and public policy. The standards for the EUA are lower than the standards for full approval, and the Federal Food, Drug and Cosmetic Act requires the “right of refusal.” To date, neither court has ruled on the legality of an employer’s mandatory COVID-19 vaccination policy.

If you have any questions about vaccinations in the workplace, please contact us.