News & Insights

You Absolutely Can Require Your Employees to be Vaccinated: Unless …

September 15, 2021

By Jerry “Jay” L. Stovall, Jr. Partner, Breazeale, Sachse & Wilson, L.L.P


You Absolutely Can Require Your Employees to be Vaccinated: Unless …
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The EEOC’s position on this issue is pretty clear: federal law does not prevent an employer from requiring all employees 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. Clearly, there are several issues to be considered in implementing a vaccination mandate.  President Biden’s announcement of a new OSHA Emergency Temporary Standard (ETS) and a new vaccination mandate from the Centers for Medicare & Medicaid Services (CMS) does not change this.  

AMERICAN’S WITH DISABILITIES ACT: The ADA will require an employer to provide reasonable accommodations to employees who object to being vaccinated due to a disability, unless providing that accommodation would pose an undue hardship on the operation of the employer’s business or pose a direct threat to the employee or others. 

If the requirement that all employees be vaccinated tends to screen out a worker with a disability, the employer must show that unvaccinated employees would pose a direct threat in order to take action against the employee. The EEOC defines a "direct threat" as a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation." The EEOC has indicated that employers should evaluate four factors to determine whether a direct threat exists:

1. The duration of the risk.
2. The nature and severity of the potential harm.
3. The likelihood that the potential harm will occur.
4. The imminence of the potential harm.

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer should consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

It is critical that the managers and supervisors who are most likely to communicate with employees about compliance with the employer's vaccination requirement know how to recognize an accommodation request and to whom the request should be referred for consideration. Making a misstep in this process often leads to litigation.

TITLE VII OF THE CIVIL RIGHTS ACT OF1964: Title VII requires an employer to accommodate an employee’s sincerely held religious beliefs unless doing so would cause an undue hardship on the business. Courts have said that an "undue hardship" is created by an accommodation that has more than a "de minimis," or very small, cost or burden on the employer. This is a much lesser standard than that required by the ADA. 

The definition of religion is broad and protects religious beliefs and practices other than those generally recognized by most employers. According to the EEOC, employers "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief," "However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information."

If an employee refuses to be vaccinated because of a sincerely held religious belief, and the employer cannot make a reasonable accommodation without incurring more than a de minimis cost or burden, the employer might be entitled to exclude the employee from physically entering the workplace. 

Employers may also not apply a vaccination mandate to employees in a way that has a disparate impact on employees because of their 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 for doing so.

Further, if an objecting employee is represented by a union, the employer may need to bargain and reach an agreement with the union before mandating vaccines.

REQUIRING VACCINATIONS

On July 29, 2021, the U.S. Department of Justice issued a Memorandum confirming that the “emergency use” status of the COVID vaccine does not prohibit employers, universities or other entities from requiring its use. On the same day, President Biden ordered that most federal workers and contractors sign forms attesting that they have been vaccinated or else comply with new rules requiring masking, weekly testing, distance, and other protective measures.

On September 9, 2021, President Biden announced a multi-prong policy designed to “encourage” more vaccinations:  
1. OSHA will issue a new ETS mandating that all employers with 100 or more employees must require their employees to either be fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis; 
2. The President will issue a new Executive Order requiring certain government contractors to be fully vaccinated, and 
3. CMS will require COVID-19 vaccinations for workers in most health care settings as a condition to continue to receive Medicare/Medicaid reimbursement. 

Every day the news announces that more large employers are implementing vaccine mandates and in June a U.S. Federal Judge in Houston sided with a Houston hospital that required its staff to be vaccinated and eventually fired most of those who refused. In reference to the lead Plaintiff, the judge said:

"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. That is all part of the bargain."

MINIMIZING RISK: Employers who plan to require their employees to get a COVID-19 vaccine or to produce proof that they have been vaccinated in order to report to work should develop a written policy. The policy should, at the least, outline the steps that the employer will go through in publishing the plan, addressing employee objections and requests for accommodation, how accommodation requests will be evaluated and eventually, how those who refuse and are not entitled to an accommodation will be handled. If a significant portion of the workforce refuses to comply, the employer may be put in the untenable position of either withdrawing the vaccine mandate or terminating a large portion of their workforce. 

Rather than run this risk, some employers are choosing to inform and incentivize their employees rather than implement a vaccine mandate. The CDC has provided a great educational resource page for employers here

The EEOC has taken the position that employers may offer employees an incentive of almost any type to provide proof that the employee has been vaccinated on their own. However, if the employer or a third party contracted to the employer administers the vaccine, the employer may only offer a very small, de minimis, incentive to the employees to be vaccinated. The rationale for this bizarre distinction is that administering the vaccine requires prescreening medical questions that are prohibited under the ADA unless the medical questions are voluntary. And, if the incentive is too substantial, then answering the medical screening questions would not be considered voluntary. So, if you are going to offer your employees an incentive to be vaccinated by your company or a third party contracted by your company, keep it very small - think a drink koozie or $10 gift card.

For more insights, register for the September 22 webinar, “Key Responses to COVID-19 Issues: The Employer Perspective.” To register for the webinar, log in as a Member at lammico.com and select "Webinars" from the drop-down menu under your name if you are using a desktop or laptop computer or tablet. If possible, please register at least 24 hours in advance of the webinar. This webinar is offered at no additional cost to LAMMICO insureds. For more information about the webinar, go to lammico.com/webinar or contact the LAMMICO Risk Management and Patient Safety Department at 504.841.5211.


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