Can an Employer Mandate a Covid-19 Vaccine for its Employees?
Employers can require employees to receive COVID-19 vaccinations as a condition of employment. Whether an employer should implement a mandatory vaccine policy involves understanding how it would implicate other legal requirements.
An employer that implements a mandatory vaccine policy may be required to provide accommodations to some employees. An employer may be obligated to accommodate: (i) an employee’s sincerely held religious belief in accordance with Title VII of the Civil Rights Act, and (ii) an employee’s disability or medical condition as required by the Americans with Disabilities Act.
A mandatory vaccine policy must comply with Title VII of the Civil Rights Act.
Title VII of the Civil Rights Act (“Title VII”) protects public and private employees against religious discrimination. An employee must have a “sincerely held religious belief” against vaccination before the employer is required to provide an accommodation. For Title VII’s protections, an employee must tell the employer that a sincere religious belief conflicts with the vaccine policy. An employer has the “statutory obligation to make reasonable accommodations for the religious observances of its employees, but it is not required to incur ‘undue hardship.’”
The Supreme Court interpreted “undue hardship” to mean anything that is more than a de minimis cost for employers. This means the employer does not have to provide an accommodation that places anything more than a minimal burden on the operation of the business. Factors that are relevant to evaluate whether an accommodation poses an undue hardship on an employer include: the assessment of the public risk; the availability of effective alternative means; and potentially the number of employees who request an accommodation.
If an employer finds and offers a reasonable accommodation, it has satisfied its obligation under Title VII as a matter of law. This is true even if the alternative is not the employee’s preference. For example, in Horvath v. City of Leander, 946 F.3d 757, 791 (5th Cir. 2020), Horvath was offered to be reassigned to a different position in the fire department which offered the same pay and benefits and did not require a TDAP vaccine, or he could remain in his current position if he agreed to wear personal protective equipment at all times while on duty. Horvath declined both options. The court found these options were reasonable accommodations.Once an employer offers a reasonable accommodation, it triggers an accompanying duty for the employee. An employee has a duty to cooperate in achieving an accommodation of his or her religious beliefs and must be flexible in achieving that end.
A mandatory vaccine policy must comply with the Americans with Disabilities Act.
An employee may request an accommodation for the vaccine under the Americans with Disabilities Act (“ADA”). ADA’s regulations protect employees from discrimination if a medical condition prevents an employee from getting vaccinated. The ADA places an obligation on the employer to offer the employee with a disability or medical condition a reasonable accommodation. The employer must offer these accommodations unless the employee cannot perform the “essential functions” of the job, the employee poses a “direct threat” to the health and safety of others, or the accommodation would place an “undue hardship” on the employer.
The ADA permits employers to consider whether an individual poses a direct threat to the public. It allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, is discriminatory in that it screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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.”
Furthermore, an employer does not need to provide a reasonable accommodation if the employer can demonstrate that the accommodation causes an undue hardship. The ADA’s undue hardship analysis requires courts to consider the situation’s individual factors such as the nature and cost of the accommodation; the size of the facility; the business involved in terms of financial, personnel, and geography; and the type of operations including compositions, structure, and function.
To determine the appropriate accommodation, it may be necessary for the employer to initiate an informal, interactive process with the employee. Both parties bear responsibility for determining an appropriate accommodation. Not all jobs will lend themselves to accommodations, but employers must engage in an interactive process with employees to consider an accommodation when an employee refuses a required COVID-19 vaccine.
Overall, an employer can mandate a policy requiring an employee to get a COVID-19 vaccine. If a policy is implemented, the employer may be required to accommodate for an employee’s religious belief or medical disability. An employer should discuss what the policy entails, the implementation process, and an appropriate timeline. Importantly, employers should prioritize education regarding the vaccine and always operate in the best interests and safety of its employees.
For more information, please reach out to members of our employment law practice group.