As citizens around the world begin receiving COVID-19 vaccinations, both workplaces and employees should be aware of the legal considerations that surround U.S. employers who plan to require employees receive the vaccine as a condition of employment or of continued employment. As employers make these decisions and write workplace COVID-19 policies, they are weighing complex competing interests: employee health and safety, customer health and safety, the potential business advantage to advertising “all of our employees are vaccinated,” legal liability, government regulations, and their employees’ civil liberties.
Historically, the U.S. Occupational Safety and Health Administration (“OSHA”) has permitted employers to mandate vaccinations during flu-like pandemics, especially in the health-care industry, leaving an exception for any employee with a medical condition that could lead to that employee getting seriously ill or being at risk of dying from a vaccination: https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09.
The U.S. Equal Employment Opportunity Commission (“EEOC”), the agency tasked with enforcing anti-discrimination laws, has not yet issued specific guidance on COVID vaccinations. In March 2020, a revised publication from the EEOC implies that the agency may recommend that employers treat the COVID-19 pandemic and vaccinations similarly to the H1N1 flu pandemic of 2009: https://www.eeoc.gov/sites/default/files/2020-04/pandemic_flu.pdf.
According to this 2020 publication and the EEOC’s prior recommendations, any employer considering a mandatory vaccination policy should contain exemptions (1) for employees who have a disability covered by the Americans with Disabilities Act Amendment Act (“ADAAA”) that prevents the taking of vaccinations and (2) for employees who do not receive vaccinations due to “sincerely-held religious beliefs.” Barring “undue hardship” to the employer, under both the ADAAA and Title VII of the Civil Rights Act (with some discrepancies between the two laws), an employer is legally required to provide these two groups of exempt employees “reasonable accommodations.” What constitutes a “reasonable accommodation” is determined on a case-by-case basis.
U.S. Courts have wrangled with the term “sincerely-held religious beliefs” in several recent cases, often looking to the EEOC’s Labor Guidelines on the “Religious Nature of a Practice or Belief,” 29 C.F.R. § 1605.1, to determine whether a belief is religious in nature. In February 2020, the 3rd Circuit Court of Appeals ruled that an employee’s anti-vaccination beliefs (which the employee termed as an “African Holistic Health lifestyle”) were not religious beliefs (Brown v. Children’s Hospital of Philadelphia).
As both employers and employees navigate the shifting waves of this pandemic, government regulations and employment laws will adapt to align with local, state, and national public health orders. How these regulations and laws will correspond to the issuance of COVID-19 vaccinations is yet to be seen. Similarly, which industries and individual workplaces will mandate employee COVID-19 vaccinations, in order to reduce risk to both employees and customers, has yet to be determined.
The employment law attorneys at Sears & Associates, P.C. are available for consultations regarding best labor practices. Please call us at 719-471-1984 if you are seeking legal advice relating to this new COVID-19 labor landscape.