As citizens around the world receive COVID vaccinations, both workplaces and employees should be aware of the legal considerations for U.S. employers who require their employees to 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 issued specific guidance on COVID-related health and work matters, including vaccinations. In May 2021, revised guidance from the EEOC plainly states, “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” per COVID-19 Vaccinations: EEO Overview, section K, here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
According to this 2021 guidance (and in line with the EEOC’s prior recommendations on other vaccines), any employer considering a mandatory vaccination policy should contain exemptions (1) for employees who have a disability covered by the Americans with Disabilities Act (“ADA”) 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 ADA 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. However, accommodations may not apply if said unvaccinated employee is deemed “a direct threat” to the health and safety of others.
In its May 2021 online guidance, the EEOC adds a possible exemption for pregnant employees, but words that guidance carefully: “Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion” (emphasis added).
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 COVID-19 vaccinations is developing. 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 fully determined.
However, of note, the EEOC warns employers who take adverse actions against unvaccinated employees: before doing so, if an employee cannot be accommodated in the workplace, employers should determine whether that employee has other legal rights under federal or state law that prohibit the adverse employment action.
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.