With two COVID-19 vaccines set to receive federal approval in the United States in the upcoming weeks, the next question is whether employers can make employees receive the vaccine.
The short answer is.yes. And while the typical lawyer answer to any question is "it depends," that concise "yes" does come with a few caveats. So, let's go through them.
First, it is also worth noting that under the federal Occupational Safety and Health Act (OSHA) and many state laws, employers are obligated to provide a workplace free from serious recognized hazards. This means that employers have the right to establish legitimate health and safety standards and polices so long as they are job-related and consistent with business necessity. As such, a policy requiring vaccinations will depend heavily on the employer's industry and physical location. Accordingly, courts in a number of jurisdictions have held that these workers can be required to receive vaccinations, such as rubella or flu vaccinations, as long as the requirement is job-related and consistent with business necessity. This is especially true in the healthcare context.
Second, even if an employer can require a vaccination due to a demonstrated legitimate health and safety requirement, we've learned from the flu vaccine that the Equal Employment Opportunity Commission (EEOC), which enforces the federal Americans with Disabilities Act (ADA), which protects employees from disability discrimination, and Title VII of the Civil Rights Act of 1964, as amended (Title VII), which protects employees from religious discrimination, has been clear that employers are already allowed to require employees to be vaccinated. However, workers who have a medical reason not to get the vaccine may request a medical exemption under the ADA and workers who have a sincere religious belief that taking the vaccine would violate their religious beliefs may request a religious exemption under Title VII.
For example, persons with certain health-related conditions, such as severe allergies to ingredients in the flu vaccine or disorders such as Guillain-Barré Syndrome, should not be vaccinated for the flu. Further, the EEOC advised that employers should accommodate pregnant employees' requests not to be vaccinated.
Notably, not all health conditions are ADA-qualifying. In Hustvet v. Allina Health Systems, the Eighth Circuit held that an employer could terminate a healthcare worker after she refused to receive immunizations for measles, mumps, and rubella because of her alleged chemical sensitivities and/or allergies because there was not enough evidence that the employee's alleged condition was actually a qualifying disability under the ADA. Because the vaccination requirement was job related and consistent with business necessity, however, the court ruled in favor of the employer.
In the religious accommodation context, in 2012 in Chenzira v. Cincinnati Children's Hospital Medical Center, the Southern District Court of Ohio concluded that veganism qualifies as a sincerely held religious belief exempting an employee from having to receive the flu vaccine, which was produced from chicken products. The employer had discounted the employee's request for exemption as a dietary preference or philosophical ideation rather than a sincerely held religious belief, but the court disagreed.
When an employer does receive an exemption request, whether due to disability or religious-related reasons, an employer must engage in an interactive process with the employee to determine if it can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer. The standard for what constitutes an undue hardship is different under the ADA and Title VII, with the disability accommodation being less strict. In any event, if an employee qualifies for an exemption under either the ADA or Title VII, the employer may have to provide the employee a reasonable accommodation to allow the employee to continue to work with vaccinated individuals, such as working remotely.
Although the EEOC could update its guidance materials, which it has done since the pandemic, it has not address the COVID-19 vaccine and its impact on workforces.
As for employer liability, should any employees develop any side effects from any required vaccine, those claims would likely be considered injuries obtained during the course and scope of employment and subject to review through each individual state's workers' compensation systems.
So, there you have it. Employers can legally require employees get the COVID-19 vaccine, subject to the reasonable accommodation protections for medical conditions under the ADA and religious accommodation exemption under Title VII. Bear in mind that the requirements to trigger these exceptions have been difficult for employees to meet in the case law. Lastly, just because an employer can require an employee to have the COVID-19 vaccination, it does not mean that an employer should require, and the EEOC has further recommended that employees consider encouraging employees to get vaccines rather than require them. However, given the scope of COVID-19 and the significant loss of life, it will be interesting to see how employers and the EEOC respond.
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