With vaccinations for COVID-19 now readily available and with the Pfizer vaccine fully approved for use by the Food and Drug Administration, employers are considering whether they can (or should) impose a vaccination requirement on their employees. The simple legal answer is that an employer can adopt a policy mandating that employees be vaccinated in order to remain employed and report to the workplace. However, employers may also face reasonable accommodation requests to avoid a vaccination requirement. It is this accommodation wrinkle that can place employers in jeopardy of a claim.
A workplace vaccination requirement is permissible because of the employer’s duty to ensure a safe and healthy workplace. In order for a COVID-19 vaccination requirement to be lawful, it must be job-related and consistent with business necessity. The Americans with Disabilities Act (ADA) allows an employer to adopt a policy requiring that employees “not pose a direct threat to the health or safety of individuals in the workplace.” For this reason, imposing a vaccination requirement on employees who report to the workplace is permissible—so as to avoid the possibility of spreading COVID-19 to others in the workplace (employees and customers alike). But, if an employee is fully remote and does not report to the employer’s workplace, this reasoning falls away and there is likely not a reason for such a policy that is job-related and consistent with business necessity. So, under the ADA and consistent with the guidelines posted by the U.S. Equal Employment Opportunity Commission, imposing a vaccination requirement on employees who report to the workplace is permissible.
Even if an employer imposes a vaccination requirement, the employer’s policy must give way to certain reasonable accommodation requests—in particular, based on religion or disability. Title VII of the Civil Rights Act of 1964 requires that employers accommodate an employee’s sincerely held religious belief, practice or observance unless doing do would create an undues business. The Supreme Court has held that the “undue hardship” standard is satisfied if the employer can demonstrate that providing the accommodation would impose more than a “de minimis” (or minimal) cost or burden on the employer. Examining this standard, the EEOC has stated: “[c]osts to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.” Ultimately, an employer must assess each reasonable accommodation request (including the circumstances of the requesting employee’s work) and determine whether the accommodation can be provided without imposing an undue hardship.
Under the ADA, employees can also seek reasonable accommodations from an employer’s policy because of their disability. To receive such an accommodation, the employee must request it and provide the employer with the information necessary to determine whether the employee has a disability and needs the accommodation. The employer’s assessment may also require participation in the “interactive process” to discuss alternative accommodations, because an employer is not required to provide the specific accommodation requested by the employee.
Nevertheless, even if the employee is entitled to a reasonable accommodation regarding a vaccination requirement, the employer must then determine what accommodation must be provided. If the employee works in the workplace with other employees (or with customers), the employer may consider whether allowing the employee to not be vaccinated would pose a “direct threat” to the health and safety of others in the workplace. The “direct threat” requirement is a much higher standard than the undue hardship requirement concerning religious accommodations; specifically, the employer must show that the individual with a disability (the accommodation requester) poses a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” When assessing whether a direct threat exists, the EEOC has identified four factors to be considered:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- The imminence of the potential harm.
If an employee who cannot be vaccinated would pose a direct threat to others in the workplace, the employer is forced to consider whether a reasonable accommodation can be made at all. For example, perhaps the employer allows the employee to not be vaccinated, but requires the employee to work remotely. Alternatively, if remote work is not available, the employer could allow the employee to remain unvaccinated but could require masking and regular COVID-19 testing for the unvaccinated individual.
The determination of whether to hardship on the employer’require vaccination of employees is an important decision that requires each employer to assess their business goals and the possible legal risks with imposing such a requirement. If the requirement is imposed and then employees request reasonable accommodations, the employer may be forced to undertake a complex legal analysis requiring consideration of many factors. Therefore, we strongly recommend that employers seek assistance when deciding whether to impose a vaccination requirement and when faced with any reasonable accommodation requests.
R. Scott DeLuca, Esq. can be reached at rsdeluca@kavinokycook.com