Member Article

Three pharmaceutical companies, AstraZeneca, Moderna and Pfeizer, have announced COVID-19 vaccines, which the director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has announced could be available as early as late December 2020.[1] Governor Mike DeWine announced some Ohio health care professionals could receive the COVID vaccine as early as Dec. 15, 2020.[2] If and when these vaccines become available, can private employers require employees to take the vaccine?

Because there is no law or regulation that directly addresses this issue, employers considering a mandatory COVID vaccination policy should analyze how mandatory flu vaccination policies have been interpreted. In the absence of state or local law to the contrary, employers may require employees to get vaccinated from the flu. However, even in a pandemic, the Equal Employment Opportunity Commission (EEOC) has emphasized that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine.[3] An exemption would be considered a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer.

Additionally, an employee may be excused from the vaccine mandate under the religious accommodation provision of Title VII of the Civil Rights Act of 1964. An employee may be exempted if taking the shot would violate his or her sincerely held religious beliefs, practices, or observances.[4] An employer must provide a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimus cost” to the operation of the employer’s business. This is a lower standard than the undue hardship standard under the ADA.

If an exemption under either of these laws is requested by an employee, employers should engage in an interactive dialogue with the employee to determine whether a reasonable accommodation would enable the employee to continue to perform their essential job functions without compromising the safety of other employees, patients or customers. Potential accommodations could include (but are not limited to) additional personal protective equipment (PPE), moving the employee’s work station, a temporary reassignment, teleworking, or a leave of absence.[5] Although, subject to these exemptions, the EEOC does not prohibit employers from mandating vaccines, it recommends private employers consider encouraging employees to take the vaccine rather than requiring employees to take the vaccine.

It is possible the EEOC may approach the COVID-19 vaccine differently than its traditional position on mandatory flu vaccinations. From the beginning of the pandemic, the EEOC has recognized COVID-19 meets the higher threshold “direct threat standard,” which allows employers to conduct more extensive medical inquiries and controls than normal.[6] As the EEOC noted in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, COVID-19 supports a finding that “a significant risk of substantial harm would be posed to having some with COVID-19, or symptoms of it, present in the workplace at the current time.” Further, other federal agencies have issued guidance documents in support of COVID-19 vaccinations. For example, the Centers for Disease Control (CDC) has issued guidance recommending vaccination for critical industries, including health care and community support agencies.[7] Additionally, the Center for Medicare & Medicaid Services (CMS) issued an Interim Final Rule to help remove administrative barriers creating potential delays to patient access of a COVID-19 vaccine.[8]

Employers considering mandatory vaccination policies should consider relevant EEOC, CDC, and state guidance. For specific questions about mandatory vaccine policies, employee matters during COVID-19, state and local COVID-19 requirements, or about managing Title VII or ADA obligations, please contact your Dinsmore labor and employment attorney.

[1] “Fauci says 20 million Americans could get COVID vaccinations around the end of the year,” Boston Globe, https://www.bostonglobe.com/2020/11/17/nation/dr-fauci-says-many-20-million-americans-could-get-vaccinations-by-end-year/ (November 17, 2020).

[2] “First coronavirus vaccine shipment to Ohio will arrive around Dec. 15, DeWine says,” Cleveland Plain Dealer, https://www.cleveland.com/coronavirus/2020/11/first-coronavirus-vaccine-shipment-to-ohio-will-arrive-around-dec-15-dewine-says.html (November 24, 2020).

[3] “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/sites/default/files/2020-04/pandemic_flu.pdf (March 19, 2020).

[4] Id. At times, an employee’s sincerely held religious belief has been interpreted very broadly. In Chenzira v. Cincinnati Children’s Hospital Medical Center, the court dismissed the employer’s motion to dismiss an employee’s challenge to a mandatory flu vaccination. The court noted that “it was plausible that [the employee] could subscribe to veganism with a sincerity equating that of traditional religious views.” Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917 (S.D. Ohio Dec. 27, 2012).

[5] An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer. That is the case even when: (1) the employer does not offer leave as an employee benefit; (2) the employee is not eligible for leave under the employer's policy; or (3) the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers' compensation program, or the FMLA or similar state or local laws). Reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. “Employer-Provided Leave and the Americans with Disabilities Act,” U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act (May 9, 2016).

[6] A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 42 U.S.C. §§ 12111(3), (8); 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2); “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/sites/default/files/2020-04/pandemic_flu.pdf (March 19, 2020).

[7] “Roadmap to Implementing Pandemic Influenza Vaccination of Critical Workforce,” U.S. Department of Health and Human Services Centers for Disease Control, https://www.cdc.gov/flu/pandemic-resources/pdf/roadmap_panflu.pdf.

The CDC has requested that all states create a vaccination plan for the vaccine when it becomes available. Most states have not taken a position on whether or not the vaccine will be mandatory for residents (or school-age children); however Governor J.B. Pritzker in Illinois has stated that vaccines will not be mandatory for school attendance. https://www.nbcchicago.com/news/local/i-cant-imagine-that-pritzker-not-sold-on-mandatory-covid-19-vaccine-for-school-attendance/2317686/

The New York State Bar Association passed a resolution urging the state assembly to mandate COVID vaccination even if individuals object for “religious, philosophical or personal reasons.” https://nysba.org/new-york-state-bar-association-calls-upon-state-to-consider-mandating-a-safe-and-effective-vaccine-if-voluntary-measures-fail-to-protect-public-health/

[8] “Fourth COVID-19 Interim Final Rule with Comment Period (IFC-4),” Centers for Medicare and Medicaid Services, https://www.cms.gov/newsroom/fact-sheets/fourth-covid-19-interim-final-rule-comment-period-ifc-4 (Oct. 28, 2020)