As COVID-19 vaccinations become increasingly available to the general public, employers are considering whether to mandate or encourage their workers to get vaccinated. Below we share some common vaccine-related questions we have fielded recently from clients grappling with the legal and practical challenges around this issue. Please note—the assessment of the below questions may change and evolve as additional guidance becomes available from the Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), the Centers for Disease Control (CDC), and federal, state, and local governments.
1. Can our company require that our workers get vaccinated?
Generally, yes. The Equal Employment Opportunity Commission (EEOC) issued updated guidance stating that private employers may implement a mandatory vaccination policy once a COVID-19 vaccine becomes widely available, provided any such policy meets certain requirements under federal anti-discrimination laws (a very significant caveat). However, there remains some uncertainty as to whether an employer can currently require vaccinations, considering that the available vaccines have only been granted Emergency Use Authorization. More on that below.
2. Can our company terminate (or take other action against) an employee who refuses to get a vaccine?
Generally, yes. Employers can terminate at-will employees for any non-discriminatory reason, with or without notice. Accordingly, an employer may make getting vaccinated a condition of on-site employment and elect to terminate at-will workers who, based on a general objection to vaccines, refuse to comply. However, employers should consider the potential implications of such an uncompromising approach. According to recent polling, 24% of Americans say it is likely they will never get the COVID-19 vaccine if they can avoid it. Even assuming that a work-based requirement would persuade some of those individuals to get vaccinated, it is likely that a significant number of workers will refuse (especially in certain parts of the country), and employers that choose to terminate those workers may face both operational and reputational challenges, even where acting lawfully.
However, even where employees are at-will, employers must explore the basis of an employee's objection to getting vaccinated before terminating. Under federal, state, and local laws, an employer must consider accommodations for workers who refuse to get vaccinated due to a sincerely held religious belief or medical disability
There are also additional considerations with respect to employees who are unionized and covered under a collective bargaining agreement which usually provides for termination only upon "Just Cause," who are not at-will (e.g., employed under fixed-term contracts), or who are entitled to severance upon a termination without Cause. In the union context, employers will need to consider whether a vaccine mandate must be collectively bargained and/or whether a refusal to comply with a vaccine mandate provides sufficient grounds for discharge. And in instances where the concept of "Cause" is contractually relevant (whether as a basis for discharge or severance), an employer must assess whether an employee's refusal to get vaccinated (in the absence of a medical or religious objection) constitutes Cause. Relatedly, it remains to be seen whether employers who terminate an employee for refusing to get vaccinated would be able to successfully contest claims for unemployment brought by such workers.
3. How do we handle religious objections?
Under Title VII of the Civil Rights Act (and analogous state and local laws), an employer must provide a reasonable accommodation for an employee whose sincerely held religious beliefs prevent them from receiving a COVID-19 vaccine, unless doing so would pose an undue hardship. Courts interpret the definition of religion broadly, so employers should assume an employee's request is based on a legitimate religious belief. However, if the employer has an objective basis for questioning the employee's sincerity, the employer may require additional supporting information.
Once an employee establishes a religious objection to getting vaccinated, the employer must engage the employee in an interactive process to determine whether any reasonable accommodation—that would not pose an undue burden on the employer—could allow the unvaccinated employee to continue working safely. For example, depending on the nature of the business and the employee's position, the employee may be able to telework, or they could be given a private office, separated from other workers. A critical question for many employers may be whether providing such accommodations imposes an undue burden on its business.
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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.
