As vaccines for COVID-19 begin rolling out across the country, many employees may be asking whether their employers can mandate vaccinations in order to return to work.
Because COVID-19 has devastated the U.S. and global economy, the vaccine has the potential to restore the millions of jobs lost to the still-raging pandemic. According to a Kaiser Family Foundation survey, however, about a quarter of Americans are reluctant to take the vaccine. Depending on where those reluctant Americans work and live, their resistance could hamper the ability to get the pandemic under control and return Americans to work.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance on whether employers can require workers to get the vaccine (see Section K of this document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” ).
Can your employer make you get a COVID-19 vaccination?
Yes, your employer can, under most circumstances, require that you get a COVID-19 vaccine if you wish to retain your job. But that doesn’t necessarily mean that if you refuse to get vaccinated you will be fired — if your objection is because of a recognized disability or a sincerely held religious or personal belief.
If an employee has a disability that would possibly be adversely impacted by the vaccine, or the employee can establish that he/she has a sincerely held religious or personal belief that prohibits acceptance of the vaccine, then the employer may be required to accommodate such an employee by either allowing the employee to work from home, or to remain on unpaid leave for a period of time. Other accommodations, however, may instead be available that could allow the employer to nevertheless insist on a return to work without the vaccine (e.g., requiring the wearing of a mask at all times, isolation of desk from other employees, etc.).
It is important to know that requiring employees to provide proof of vaccination is not a new concept. Depending on the industry you work in, you may already be subject to mandatory vaccines. Healthcare workers and public-school employees are probably already familiar with mandatory vaccine requirements.
Federal law permits mandatory vaccination requirements, as long as employers comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Texas law allows for exemptions for medical reasons or for reasons of conscience, including a religious belief — but those exemptions may still allow the employer to bar the employee from the workplace.
Let’s take a look at the exemptions available under the ADA and Title VII.
Medical Accommodations Under the ADA Related to Vaccinations
The ADA enables employees to request an accommodation if they have a covered disability. While there is a split among federal courts about whether a “sensitivity to vaccinations constitutes a covered disability,” there are some conditions that definitely constitute a covered disability that may be adversely impacted by a vaccination.
For instance, immunocompromised individuals and those with a history of Guillain-Barré syndrome may not be physically able to handle a vaccine. Any employee that requests a medical accommodation will have to provide proof of their disability and will also likely need a letter from their physician explaining why they cannot tolerate a vaccination.
Regardless, employers must engage in a good faith discussion with an employee who requests a medical accommodation under the ADA. After an employee provides notice of a covered disability that could reasonably be affected by a vaccination, and requests an accommodation, an employer would need to discuss the requested accommodation with the employee and determine whether it creates an “undue hardship” for the employer, thus allowing the employer to deny that request, or consider another option for accommodation. Note that an employer may require documentation from a physician of a disability and any danger posed by a vaccination.
According to the EEOC, “If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
Accommodation options may include remote work (as many office workers are doing now) or taking leave under the Families First Coronavirus Response Act, the Family and Medical Leave Act, or the employer’s policies.
“If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker,” the EEOC guidance continues. “Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”
Because “herd immunity” (the level at which an infectious disease essentially becomes unthreatening because a significant percentage of the population is immune, either through previous infection or vaccination) may at some point lessen an unvaccinated employee’s danger to others, the EEOC guidance says that employers may take into account the number of employees who have already received a COVID-19 vaccination, as well as the amount of contact with others (such as customers), whose vaccination status could be unknown, when determining whether the unvaccinated employee poses a direct threat at the worksite.
Also, because of privacy laws, “it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation,” the EEOC advises.
Religious Accommodations Under Title VII Related to Vaccinations
Some vaccine objectors may also request an exemption from a mandatory vaccine rule if they can establish that a “sincerely held religious belief” prohibits vaccination. Texas law also allows non-religious “conscientious objections” to vaccines, and thus offers broader protection to employees than does Title VII in this regard.
According to the EEOC guidance, the same rules generally apply with employees who seek an exemption because of a medical disability: if the employee can be accommodated — whether through remote work, taking leave, or other accommodations — then they can be excluded from the workplace.
Once again, the EEOC advises, “This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”
Are you concerned about your rights in the workplace?
If you are concerned about your health or safety in the workplace, we can help. Whether you are concerned about your employer failing to implement COVID-19 protections, or if you fear you may not be able to comply with a mandatory vaccination policy, we can help you determine your rights and next steps. Contact our office for a free consultation, or for more information.