Wichita, Kan. (August 4, 2021) - Can a business mandate that its employees be fully vaccinated from COVID-19 as a term of condition to their employment? The short answer is, it depends.
The long answer is that a business may mandate that its employees receive the COVID-19 vaccination as long as the policy does not violate any existing statutory or anti-discrimination laws such as Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Genetic Information Discrimination Act (GINA), or other similar statutes. Employers should also take into consideration state and local specific laws when drafting and implementing such policies.
As The Wall Street Journal has noted, many companies have recently moved towards implementing policies mandating its employees receive the COVID-19 vaccine or face termination. These companies may also allow workers to provide a valid exemption from such policies. The U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws, has provided the following guidance regarding mandated vaccinations:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.
In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer's business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.
As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on – or disproportionately excludes – employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
In a recent case, Jennifer Bridges et al v. Houston Methodist Hospital, et al., the United States District Court for the Southern District of Texas upheld a mandatory vaccination policy for Houston Methodist Hospital, stating in part:
Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker's behavior in exchange for remuneration. This is all part of the bargain.
According to the EEOC, a reasonable accommodation for unvaccinated employees could include wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, receiving periodic tests for COVID-19, having the opportunity to telework, or accepting a reassignment. Whether a reasonable accommodation exists should be based on the specific circumstances and the employee's job functions at the business.
When determining what to include in a mandatory COVID-19 vaccination policy, and how to implement the policy, businesses should, at a minimum, consider:
- The purpose and intent of the policy. A mandatory COVID-19 vaccination policy should provide the legitimate business reason for the policy.
- Specific details regarding vaccination policy. This section of the policy should take into consideration timeframes, costs (i.e., will the employer compensate or provide the vaccination), and how to verify vaccination compliance.
- A well-defined exemption procedure to the policy. This section of the policy should clearly define who may be exempt from the mandatory COVID-19 vaccination policy, and modes of communication regarding the request for exemption. Businesses should be ready to discuss with employees available accommodations and whether those accommodations would pose an undue hardship on the operation of the business.
- Thinking long-term. A business should also take into consideration how the mandatory COVID-19 vaccination policy will be implemented in the future. If the purpose and intent of the policy changes, a business should be prepared to update its policy with the applicable and possible changes (e.g., additional vaccination requirements, duration of policy, etc.).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
