If a COVID-19 vaccine becomes available this year or in 2021, your business needs to consider whether or not having a mandatory vaccination policy makes sense. Workplace policies requiring vaccinations are not new, particularly in the healthcare sector, but implementing such a policy is not without potential challenges. Title VII of the Civil Rights Act of 1964 (Title VII) allows for religious accommodations, and employers also need to consider potential medical accommodations under the Americans with Disabilities Act (ADA). In addition, employers should also consider how such a policy would affect employee morale before they implement such a policy.
Exemptions for Religious Beliefs
Employees with a “sincerely held religious belief” may not be coerced into receiving a vaccine even if their reason for abstaining doesn’t specifically relate to their faith. Some practices, like veganism, are as rigorously followed as a spiritual practice; however, simply objecting to vaccinations in general will not meet legal requirements for an accommodation. And in cases where the lack of a vaccination poses a severe hardship for the business, a person’s religious beliefs may be overruled for the good of a larger group, particularly when vaccinations are required to protect the health of at-risk individuals.
Accommodations Under the ADA
Individuals who are sensitive to ingredients in a vaccine, such as egg proteins, may request not to be vaccinated. The courts have rendered split decisions on this issue in the past, so anticipating a ruling is problematic. If employers are able to offer a vaccine with an alternative ingredient composition that doesn’t cause an allergic reaction or other problematic side effect, they will be less likely to have the policy challenged.
Federal Agencies and Their Stance on COVID-19 Vaccines
There’s no way to predict how courts will rule if mandatory vaccination accommodation requests result in legal actions. Previous cases have involved vulnerable patients, but if no “sick patient” exists, assuming a hypothetical risk may not be looked upon favorably by the court. However, the U.S. Equal Employment Opportunity Commission (EEOC) has deemed COVID-19 a “direct threat” under the ADA, which opens the door to medical controls and inquiries previously considered too invasive.
The U.S. Centers for Disease Control and Prevention (CDC) recommends workplace vaccination policies, particularly for critical industries and those impacting national infrastructure. And while the federal Occupational Safety and Health Administration (OSHA) has encouraged its own inspectors to get the vaccination, it has previously noted that whistle blower rights may protect employees from mandatory vaccination policies.
Employers should also consider how a mandatory vaccination policy will affect employee morale. Polls have shown an increase in Americans' mistrust with the vaccine approval process, as well as concerns about a COVID-19 vaccine being rushed through and the process being influenced by politics so much so that two-thirds of all Americans say they wouldn't take a first generation vaccine. Given the prevalence of the mistrust among Americans, employee morale should definitely be a consideration for employers.
Evaluate whether a mandatory policy is truly necessary and how it may affect employee morale;
Limit the mandate to high-risk environments;
Prepare for accommodation requests by creating separate forms for religious and medical exemptions, including specific accommodation options;
Set a vaccination deadline and designate monitoring, enforcement, and compliance duties to appropriate personnel;
Assume the financial burden of vaccinating employees by providing vaccines on-site at no cost;
Work with union leaders, as needed, to implement the vaccination protocol;
Monitor new regulations and developments from state and federal authorities, which could impact claims; and
Review state workers’ compensation laws and current insurance policies in preparation for potential claims or potentially discounted premiums.
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Legal Disclaimer: This article does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel.