The ongoing COVID-19 pandemic continues to pose unprecedented challenges for the construction industry. Over the past 18 or so months, the industry as a whole has faced endless twists and turns. Now, the availability of safe and effective vaccines has been thrown into the mix, including a fully-approved vaccine from Pfizer/BioTech.

Complicating matters even further, some companies are being required by state or federal order to implement vaccine mandates for employees, while others are simply considering a mandate as a matter of health and safety. And, as of the time this article was written, new guidance from OSHA was expected to be released that would establish an Emergency Temporary Standard for employers with 100 or more employees and require employees to be vaccinated or subject to an exemption. With any such mandate comes various legal and practical issues that employers need to be prepared to tackle. Most of the issues facing employers surround reasonable accommodations under Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII") and the refusal to obtain the vaccine. These three issues are briefly addressed in turn below.

ADA Accommodations

The ADA prohibits employers from discriminating against an employee on the basis of a disability and requires employers to reasonably accommodate disabilities if they can do so without an undue hardship. This means that, in the COVID-19 context, if an employee has a disability that prevents him or her from obtaining the COVID-19 vaccine, including, a contraindication, an employer must provide a reasonable accommodation to that employee absent a direct threat or an undue hardship. A direct threat means 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." To determine if an unvaccinated employee poses a direct threat, an employer should conduct an individualized assessment, which considers the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. If there is a direct threat, then the employer does not have to reasonably accommodate the employee under the mandatory vaccination policy.

Alternatively, if there is no direct threat, then the employer and employee must engage in the interactive process to determine a reasonable accommodation, if any. In the context of COVID, reasonable accommodations may include (i) wear a face mask; (ii) work at a social distance from coworkers or non-employees; (iii) work a modified or staggered shift; (iv) get periodic tests for COVID-19; (v) telework, if feasible; or (vi) reassignment. At this point, the employer must accommodate such employee absent an undue hardship, which is a high bar.

According to the Equal Employment Opportunity Commission ("EEOC"), whether an accommodation poses an undue hardship is based on several factors, including: the nature and cost of the accommodation; the overall financial resources of making the reasonable accommodation; the number of persons employed; the effect on expenses and resources of the employer; the overall financial resources, size, number of employees, and type and location of the employer; the type of operation of the employer; and the impact of the accommodation on the operation of the employer.

Ultimately, any request for accommodation under the ADA to a mandatory vaccination policy will be very fact specific and each request should be made on a case-by-case basis - some employees may be accommodated, while others may not.

Title VII Accommodations

Title VII prohibits employment discrimination on the basis of religion. According to the EEOC "[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs." The law does not protect political or social philosophies and mere personal preferences. Therefore, employees who subscribe to an "anti-vax" philosophy that is not rooted in a sincerely held religious belief are not afforded the protections of Title VII.

Similar to the obligations under the ADA, under Title VII, employers are required to provide reasonable accommodations to employees claiming their sincerely held beliefs conflict with getting vaccinated, absent an undue burden. Under this law, employers should first consider, whether there is a sincerely held religious belief. Generally, employers should assume this. However, if there is a good faith objective basis for questioning the sincerity, then an employer may ask for more information, like a letter from clergy or whether an employee has been vaccinated against other diseases. The EEOC has identified four factors that may create an objective basis for questioning the sincerity of the employee's belief, including:

  • Whether the employee has acted in a way that is inconsistent with the claimed belief;
  • Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
  • Whether the timing of the request is questionable (for example, because it follows closely on the heels of the same employee's request for the same benefit for different reasons); and
  • Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.

This is important because no accommodation must be made absent a sincerely held religious belief, and the employer is otherwise free to enforce the mandatory vaccination policy. Not to mention, at this point, there are very few religions that have belief systems that actively advocate against receiving the COVID-19 vaccine.

That said, if an employer concludes that the employee's objection to the mandate is grounded in a sincerely held religious belief, the employer and employee must then engage in the interactive process to determine what reasonable accommodation, if any, may be suitable for the employee and the employer. If there is a reasonable accommodation, then the employer must allow it absent an undue burden. Under Title VII, an undue hardship is one that would require more than a de minimis cost or burden to the employer or the operations of the employer's business.

Generally, determining whether an employee is exempt under Title VII from a mandatory policy must be made on a case-by-case basis. However, in light of the COVID-19 pandemic, employers may have solid legal grounds to deny employees' claims for an exemption under Title VII.

Refusal to Comply

As a general matter, the EEOC has made clear that employees can be required to take the vaccine as a term and condition of employment, subject to the ADA or Title VII. Therefore, employees may be terminated or otherwise disciplined for failure to comply with a mandatory vaccination policy. Recently, a federal court in Texas upheld a policy that required employees to obtain the COVID-19 vaccine or be terminated. In that case, the judge held that the employer did not violate state or federal law or public policy. With the developing state and federal orders, more courts will likely rule the same.

Of course, with that considered, employers need to ultimately decide whether and to what extent disciple should be issued if an employee refuses to comply with a mandate. For some employers, termination may be required, especially in light of certain state or federal orders, while other employers may prefer to issue progressive discipline. Applicable collective bargaining agreements may also dictate how and what discipline may be issued. Therefore, employers need to consider their workforce, the nature of their business, and any prevailing state or federal mandate, to determine how to respond to an employee refusing to obtain the vaccine per its mandate.

As this demonstrates, with any COVID-19 vaccine mandate, there are many legal and practical issues that employers must consider. However, despite those issues, the industry is expected to receive some well-needed relief as a result of increasing vaccine mandates.

Originally appeared in CCIA CONNstruction Journal here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.