In the past week, millions of Americans watched as volunteers and government officials received the first COVID-19 vaccinations on U.S. soil. Businesses of all sizes are feeling the pandemic’s devastating effects and employers are likely contemplating whether they may legally implement a mandatory vaccination policy for employees. The answer, as one might expect, depends a lot on the nature and extent of the proposed policy.
In Virginia, an employer may legally craft and enforce a policy requiring all employees to receive a COVID-19 vaccination, but the policy would have to include exceptions for employees who meet certain criteria. Employees are lawfully entitled to refuse to take a COVID-19 vaccination via the rights created by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). The ADA protects persons with disabilities or persons regarded as having a disability from discrimination or harassment in employment. Title VII protects employees from discrimination on the basis of several protected characteristics including, most relevant to this issue, religion.
Under the ADA, which applies to businesses with at least 15 employees, employers are prohibited from making disability-related inquiries or requiring medical examinations of employees unless such inquiries or examinations are job-related and consistent with business necessity. Per new guidance released by the EEOC on December 16, 2020, an employer’s mandatory vaccination policy may run afoul of this ADA prohibition, particularly if the employer administers the vaccinations itself or contracts with a third-party vendor to do so. By so doing, employees would invariably have to answer pre-screening vaccination questions prior to taking the vaccine, which could result in the employee having to disclose information about a disability. The employer could avoid this issue by having employees get vaccinated by their primary care physician or via some other publicly available option. Even so, for a mandatory vaccination policy to be enforced, employers would need to require employees to provide proof they received the vaccine.
If an employer enacts a mandatory vaccination policy and an employee with a disability indicates he or she cannot comply with the requirement due to a disability, the employer may not immediately terminate the employee. The ADA requires the employer to provide the employee with a reasonable accommodation so long as it does not create an undue hardship on the employer. Employers and employees should engage in a flexible, interactive process to identify accommodation options that do not constitute an undue hardship. In the COVID-19 context, a reasonable accommodation could include allowing the employee to telework, if possible, or changing the employee’s worksite or location in a manner that reduces his or her contact with co-workers and the public.
The employer may be relieved of its accommodation obligation if the employee poses a direct threat to the health and safety of others. When considering whether an employee poses a direct threat to others, the ADA provides four factors the employer must assess: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.
Beyond the ADA, employers must also consider Title VII, which applies to all employers with at least 15 employees. Most relevant to the mandatory vaccination issue is Title VII’s protections for an employee’s religious beliefs. Once an employee informs his employer that he or she cannot receive a COVID-19 vaccination due to a sincerely held religious belief, the employer is required to provide a reasonable accommodation for that employee’s religious belief or practice. As with the ADA, an employer does not have to provide an accommodation if doing so creates an undue hardship. However, the standard for an undue hardship under Title VII is much less onerous for employers. The EEOC defines undue hardship in this context as anything that places more than a minimal burden on the operation of the employer’s business.
Further, at least one federal appeals court has held that Title VII’s religion protections in the vaccination context do not extend to matters of conscience or mere disagreement with medical science. On February 14, 2020, the U.S. Court of Appeals for the Third Circuit ruled in favor of an employer who discharged an employee that refused to comply with the mandatory flu vaccine policy. That court emphasized that an employee’s sincere opposition to vaccination has to either be a religious belief itself or be tied to a religious belief in order to receive Title VII’s protections. Brown v. Children’s Hosp. of Phila., 794 Fed. Appx. 226 (3d Cir. 2020) (quoting Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d 487, 490 (3d Cir. 2017)). While this case arose in Pennsylvania and is not binding in Virginia, the analysis set forth provides a framework for other federal or state courts to follow if faced with similar situations.
Employers should also consider whether they are subject to any collective bargaining agreement or other governing contract, as well as what liability may be triggered under workers’ compensation laws if an employee is injured via a vaccination administered by the employer or an employer-contracted third party. Each of these variables present their own unique set of implications for affected employers.
In sum, Virginia employers are free to mandate COVID-19 vaccinations for all employees, but the employers must be prepared to offer accommodations or exemptions to those who qualify for them. As nationwide distribution of the COVID-19 vaccine approaches, the Labor & Employment Law Team at Vandeventer Black remains ready to assist employers in crafting appropriate policies and addressing the inevitable challenges that come with the vaccine.