With the anticipation of a COVID-19 vaccine in the near future, employers should be contemplating how the availability of a COVID-19 vaccine will impact the workplace. Specifically, when the vaccine is released, can employers require employees to be vaccinated against COVID-19? Generally speaking, the answer is yes, employers can mandate vaccination programs. However, these mandates have limitations and are not always recommended.
In the midst of a historic pandemic, many novel issues and circumstances have yielded a plethora of new legislation, policies, and mandates to combat and lessen the impact of COVID-19. Mandatory vaccinations by employers are not novel and are often seen within the medical field. Two significant exceptions related to a mandatory workplace vaccine policy relate to employee disability and employee religious beliefs prohibiting vaccinations. These exceptions are codified in the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
Americans with Disabilities Act
Under the ADA, an employee requesting an accommodation must show an eligible disability. If the employee is covered under the ADA, the employer must show that the accommodation would create an undue hardship if granted. An undue hardship would establish harm to the employer, the employees, and third parties, such as clients or customers. In the context of COVID, the harm that comes to mind is the result of allowing a single employee to forgo vaccination could place the health of others in the workplace at risk. This was the case in Robinson v Children’s Hospital Boston[1] where the court held exemptions to a mandatory flu vaccine would place the livelihood of their vulnerable patients at risk.
Title VII
Under Title VII, an employee requesting an accommodation must show a sincerely held religious belief before receiving a religious accommodation. Personal or ethical objections are normally not enough, such as personal anti-vaccination feelings, to receive an exemption from a vaccination mandate. Similar to the ADA, if the accommodation poses an undue hardship, an employer may deny the employee’s accommodation.
Equal Employment Opportunity Commission
The Equal Employment Opportunity Commission (EEOC) issued an update to Pandemic Preparedness in the Workplace and the Americans with Disabilities Act[2]. This guidance addresses whether employers covered by the ADA and Title VII can require all employees to take the influenza vaccine (since there is not a COVID-19 vaccine to date). The EEOC echoed the aforementioned information, noting that an employee could be entitled to an exemption from a mandatory vaccination based on an ADA disability preventing the employer from getting the vaccine. EEOC further iterated under Title VII, “once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents them from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship[3].” As a result of the ADA and Title VII, the EEOC advised that employers should consider encouraging employees to get the vaccine rather than mandating that they receive it.
New York
In New York, under 10 NYCRR § 2.59, healthcare facilities and agencies that are licensed under Article 28 or 36 of the Public Health Law and any hospice under Article 40 must ensure that employees who are not vaccinated against influenza wear personal protective equipment such as surgical mask while working in patient or resident occupied areas that the Commissioner of Health determines are at risk for influenza. These employers are not prohibited from implementing stricter policies[4]. In 2019, in response to measles outbreaks, the New York Legislature repealed provisions of the Public Health Law exemption allowing a nonmedical-religious bypass of the requirement that children receive mandatory vaccinations before attending school or daycare. The Courts upheld the Legislature, stating that the logic behind the repeal was driven by public health concerns and not religious animus[5]. Will New York follow this rhetoric once the COVID-19 vaccination is issued?
Preparation
If employers want to begin preparation for the release of a COVID-19 vaccination, they should first determine if mandating the vaccine is necessary for their business. Employers should consider alternatives to a mandate, such as working from home, social distancing, use of PPE, and other CDC recommendations. Employers can consider limiting a vaccine mandate to employees who are exposed to high-risk environments. Employers that mandate the vaccine should request and review accommodations from employees before the policy goes into effect. Once the policy is active, employers should look to offer the vaccine at no cost to the employee and consider on-site availability to employees during their normal work schedule.
Closing
After a COVID-19 vaccine is released to the general public, federal and state authorities will issue further guidance regarding vaccinations within the workplace. Employers should continue to closely watch for developments at the state level. Businesses should start brainstorming their COVID-19 vaccination strategy to ensure they are ready to implement their policy in the coming months.
If you have legal questions about employers requiring employees to get the COVID-19 vaccination, our firm is glad to help. Call Tim Lambrecht at (315) 445-1700 or e-mail him at tlambrecht@wladislawfirm.com.
[1] Robinson v Children’s Hospital Boston, 2016 U.S. Dist. LEXIS 46024, at 5-6 (D. Mass. Apr. 5, 2016).
[2] See https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
[3] An undue hardship is defined by Title VII as more than de minimis cost to the operation of the employer’s business, a lower standard than under the ADA.
[4] See New York State Sanitary Code, 10 N.Y.C.R.R. § 2.59(h)
[5] See F.F. v State of NY, 2019 NY Slip Op 29376, 114 NYS 3d 852, 863 (Sup. Ct.).