As with any policy, there are legal exceptions employers will have to consider. However, it is the practical issues associated with such a policy that may be more compelling to avoiding the mandate. If an employer requires vaccinations and will exclude employees from the workplace who aren’t vaccinated, how many employees would be excluded? Who will step in to perform the work? What additional cost is associated with filling the vacant spots? Will the employer be required to pay leave for those excluded? Is the employer a reimbursable employer requiring dollar-for-dollar reimbursement to SCDEW for any funds spent on those excluded? A mandate also creates more administrative hassle for employers and human resource professionals, not to mention the uproar such a policy would cause among those employees opposed to the vaccination on political or other similar grounds.
The legal considerations an employer must consider arise under the Americans with Disabilities Act (ADA) and religious exemptions under Title VII. Under the ADA, an employee with a disability may ask for an accommodation not to comply with the mandatory vaccination policy. If a treatment provider provides documentation indicating that the provider does not believe the employee should take the vaccine, the employer must accommodate the employee but may do so with other PPE and protections to keep the employee safe at work unless doing so would create an undue hardship.
Under Title VII, if an employee is able to establish that a sincerely held religious belief prohibits the employee from taking the vaccine, and is able to explain what belief such a policy violates, an employer should grant an accommodation unless doing so creates an undue hardship. The undue hardship standard for a religious accommodation is a “de minimis” hardship rather than the more stringent burden of undue hardship under the ADA.
An employer who denies the exemption should be able to document why granting either accommodation is an undue hardship. Examples that might establish undue hardship under the ADA may be proof of disruption of business operations that cannot be solved by temporary measures, overworking other employees, or excess cost to the company as compared to the company’s budget. Good examples of meeting a de minimis burden would also depend on the specific situation, but increased costs due to hiring additional staff, inability to otherwise protect the vulnerable population or other employees or other such similar examples might suffice. What makes this inquiry perplexing for an employer is that PPE and social distancing are suitable alternatives to the vaccination in most situations. These practices cannot be fairly said to create undue hardship under either standard as they are safety practices that likely have been in place at workplaces for the last year.
Remote work may be suitable for some positions; however, for many, it is not. Employees requesting remote work as an accommodation on the basis of the mandatory vaccination policy must still show other protections, such as PPE and social distancing, will not suffice to protect them from contracting serious complications from a COVID-19 exposure. Additionally, under the de minimis standard, an employer may not be required to provide PPE to the employee seeking a religious exemption from the vaccine policy. Having offered this protection for the last year and now contending it is a de minimis hardship may fall flat with the EEOC. If the accommodation is granted, but remote work isn’t feasible for a specific position, an employer may exclude the employee from the workplace. However, an employer should not terminate any employee or deny any paid leave as both of these actions would amount to an adverse employment action.
A Massachusetts federal court upheld a hospital’s termination of an employee who worked with a vulnerable population and refused to comply with an employer’s mandatory flu vaccination policy on the basis of religion. The court found the policy reasonable because the hospital served vulnerable populations. The healthcare workers providing care to those populations were at high risk for contracting influenza and would expose that population to the flu, which could be fatal. The court noted that refusing the flu shot would create an undue hardship on the employers who could not reassign duties and would incur other costs hiring employees to perform those duties. Another North Carolina court stated in its opinion on an unrelated matter that an employer would meet the de minimis burden if an employee who served a vulnerable population refused to comply with the hospital’s mandatory flu vaccination policy. While those cases are analogous to a policy mandating the COVID-19 vaccination, the COVID-19 vaccination is in Emergency Use Authorization (EUA) status and the flu shots at issue were not. A court considering termination in the instance of an employee refusing a COVID-19 vaccination may not find termination was reasonable regardless of former opinions due to the difference in the vaccinations and the publicity around risks associated with the COVID-19 vaccination. Additionally, the EEOC, expressly contends employers should not terminate but exclude unless they can document undue hardship. It is important to remember here that the EEOC is the first agency in line to address any ADA or Title VII complaints filed by any employees terminated or laid off without use of accrued paid leave.
Additional factors to consider regarding a mandatory vaccination policy:
President Biden recently announced a tax credit for employers who offer their employees paid leave to get the COVID-19 vaccine. The tax credit is available to businesses and nonprofits with fewer than 500 employees. Click here to view the IRS fact sheet for information on how to claim the credit.