Many businesses suffered substantial losses of revenue due to COVID-19. As such, when news broke in late 2020 that several COVID-19 vaccines were in the final stages of development and would soon be distributed to those that wished to receive them, many business owners began to hope that operations could soon return to normal.
Not everyone has an interest in receiving a COVID-19 vaccination, though, and for a variety of reasons, people are electing not to receive the vaccine. While people have the right to make personal decisions about their health, many employers want to make employee vaccinations mandatory. Consequently, the issue of whether an employer can force an employee to get a COVID-19 vaccine has been a recent topic of debate.
While stopping short of answering the question directly, the Equal Employment Opportunity Commission (EEOC) recently implied that vaccine mandates are permissible, with a few key exceptions.
For example, some employees may be unable to receive vaccines due to a disability. The EEOC explained that employers may set qualification standards for employees, including requirements that a person refrains from engaging in behavior that poses a “direct threat” to the safety or health of other people in the workplace. Under the American with Disabilities Act (ADA), therefore, an employer that adopts a vaccine requirement or other qualification standard that screens out people with disabilities must show that is necessary because an unvaccinated employee would pose a substantial risk of harm to the safety or health of others that cannot be reduced by a reasonable accommodation.
Employers must consider four factors to assess whether a direct threat exists: how long the risk will last; the immediacy of the danger; the severity and nature of the possible harm, and the likelihood that an injury will occur. In other words, an employer that concludes that a direct threat exists must find that an unvaccinated employee will expose other workers to COVID-19 at work.
Employees may also be unwilling to receive vaccines due to religious beliefs. Notably, the definition of religion is broad and protects a wide variety of beliefs, practices, and observances. Pursuant to Title VII of the Civil Rights Act of 1964, employers may be required to provide reasonable accommodations to parties who cannot be vaccinated due to religious beliefs. The Maryland Fair Employment Practices Act (FEPA), which is the state law analog of Title VII and is interpreted by federal cases interpreting Title VII, offers Maryland employees protection against religious discrimination as well. See Schmidt v. Town of Cheverly, MD., 212 F. Supp. 3d 573 (D. Md. 2016). Generally, employers should assume that an employee’s request for religious accommodation is based on a sincerely held belief. An employer may justifiably request additional supporting information, though, if there is an objective basis for questioning whether the belief is sincere or is religious in nature.
Employers who encounter employees who elect not to receive the COVID-19 vaccine due to disabilities or religious beliefs should work with employees who request reasonable accommodations to determine whether there are options that would enable the employees to continue to work that would not create an undue hardship for the employer. Generally, an accommodation will be considered an undue hardship if it is costly or difficult for the employer. Factors such as the number of employees vaccinated other than those requesting an accommodation and the amount of contact that unvaccinated employee has with other people will bear on the undue hardship analysis.
If an employee declines to obtain a COVID-19 vaccination due to a disability or religious belief, and the employer is unable to offer a reasonable accommodation, the employer can prohibit the employee from entering the workplace. Employers may be barred from terminating employees based on rights provided by EEO, state, or federal laws, depending on the individual circumstances. In other words, an employee may be entitled to telework or may be able to take leave under the Family and Medical Leave Act, the Families First Coronavirus Response Act, or the employer’s policies.
Employers who have adopted a vaccine mandate can require an employee to show proof of vaccination. Subsequent questions, such as why a person did not receive a vaccination could elicit information about a disability and would be subject to the relevant ADA requirement that such a question is job-related and consistent with business necessity.
While vaccine mandates are arguably lawful, employers should consider the potential adverse consequences of imposing vaccination requirements. For example, they may risk alienating employees who question the vaccine’s safety or efficacy or losing valuable workers who do not want to be vaccinated but do not fall under the protection of the disability or religious belief exceptions.