The much-anticipated vaccine for the Coronavirus (COVID-19) has been authorized for emergency use by the FDA. The vaccine will now be distributed across the country and provided to individuals based on plans developed by their state governments.
With this recent development, many employees are wondering about their rights, especially if their employers mandate that employees get the COVID-19 vaccine.
In general, an employer may require that all employees obtain vaccinations as part of legitimate health and safety requirements that are job-related and consistent with business necessity. Industries in which employees are client-facing, thereby posing a greater risk to others, will have a more compelling case for mandating a vaccine. Vaccine mandates are often considered reasonable and necessary in the healthcare industry and sometimes with childcare workers.
Employers have an obligation under the Occupational Safety and Health Act (OHSA) to ensure they provide a safe and healthy work environment for their workers. The U.S. Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission (EEOC) have determined that COVID-19 meets the definition of a “direct threat,” able to trigger heightened safety measures in the workplace. Although the EEOC has not yet released guidance on mandating a COVID-19 vaccine in the workplace, the regulations and guidance from these federal agencies currently provide employers with the flexibility to institute a variety of safety policies. Requiring that employees get a vaccine will likely be considered reasonable.
If an employee refuses to get the vaccine, an employer is within its legal rights to terminate that individual’s employment—with certain exceptions. Cases concerning the flu vaccine are particularly instructive.
Under Title VII of the Civil Rights Act of 1964, individuals have the right to be free from discrimination on the basis of religion. As part of their religious beliefs, many individuals object to vaccines. Employers are required to accommodate religious observances and practices, unless doing so imposes an undue hardship on the business.
“Religion” is very broadly defined and encompasses not only organized religions, but also informal beliefs. “Religion” under the law can also encompass non-theistic and moral beliefs.
In Chenzira v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. Lexis 182139 (S.D. Ohio, 2012), the court recognized that veganism, in some circumstances, may constitute a sincerely held religious belief. That court exempted an employee from a flu shot requirement.
Once an employer determines that a true religious exemption exists, the employer must make an accommodation for the employee. Such accommodations may include reducing a mask requirement, modifying work duties to comply with social distancing, adjusting an employee’s schedule, or allowing an employee work from home.
If an employer can establish that the employee is seeking an exemption for non-religious reasons, the employer may deny the employee’s request. In a case from the Third Circuit, Fallon v. Mercy Catholic Med. Ctr., No. 16-3573 (3d Cir. Dec. 14, 2017), the court denied an employee’s request for exemption finding that the employee’s concerns were really about health effects of the flu vaccine, meaning they were actually medical rather than religious.
Some individuals may have medical reasons which prevent them from getting a vaccine. Medical exemptions may include allergies to vaccine components, a history of Guillain-Barré syndrome, or other health ailments that make the vaccine risky for the individual.
Recently, some individuals have displayed a highly allergic reaction to a COVID-19 vaccine, and the medical guidance has since changed for individuals with severe allergies. If an individual claims a medical basis for requesting an exemption from a vaccine requirement, an employer may request that the employee provide a physician’s note.
If an individual raises a medical basis for an exemption, the employer is required to follow the interactive process outlined by the Americans with Disabilities Act (ADA). Employers must determine if the employee has a qualifying disability under the ADA and if an alternative accommodation can be offered.
If you have a genuine religious or medical need for an exemption, it is usually best to speak with your employer and work with them to find a resolution before seeking a legal solution.
The information contained in this post is current as of the date of publication. We will monitor updated guidance as the law in this area continues to evolve.