Now that COVID-19 vaccines are widely available in the United States, and local jurisdictions are loosening their quarantine restrictions, many communities are returning to a sense of normalcy. As society begins to return to this “new normal,” many private businesses are asking their employees to return to the office in person as well. A good deal of these businesses – including large corporations like Morgan-Stanley – are requiring that their employees are vaccinated when they return.
Naturally, many Americans want to know if employers can make such personal mandates, and employment law attorneys such as myself have been inundated with calls from employees seeking guidance. My own law firm has fielded countless calls from employees wondering if they may be fired if they refuse to get a mandated COVID vaccine.
The short answer to the first question is yes. In most circumstances, an employer may legally require an employee to get a vaccination as a condition of employment. The second answer is that most employees will have little recourse under the law if they are fired for refusing to get a mandated vaccine.
The caveat here is that this novel virus and vaccine technology create uncertainty about how the courts interpret current federal employment laws. As employment lawyers, we are making educated guesses about how the (inevitable) lawsuits will resolve. Interestingly, several states such as North Carolina are considering enacting laws that would contradict the federal law guidance on vaccine mandates. It remains to be seen how these state laws will impact the federal precedence on vaccine requirements.
The Equal Employment Opportunity Commission (the “EEOC”) is the federal agency tasked with enforcing workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. According to recent guidance from the EEOC, employers do not violate the above laws if they ask employees if they have received a vaccine or require individuals to prove they were vaccinated.
However, there are some limited exceptions to the EEOC guidance that employers and employees should understand when analyzing this issue.
Employers May Ask about Vaccine Status under the ADA.
The Americans with Disabilities Act covers employers with 15 or more employees. The ADA generally prohibits covered employers from asking an employee or an applicant disability-related questions or subjecting an employee or applicant to a medical exam. However, the EEOC has affirmatively stated that asking about COVID-19 vaccination status is not a disability-related inquiry if the inquiry is “job-related and consistent with business necessity.” For most companies dealing with health care or the public, this standard will be easily met. The EEOC has also clarified that requesting proof of vaccination is not a disability-related inquiry under the ADA. However, the employer must keep medical records such as vaccination information confidential.
For employers with less than 15 employees, there is even less restriction on what medical information an employer may legally ask an employee. Unless there is a state law covering the employer, the employer may legally ask their employees to reveal and prove their vaccination status.
Employers Must Consider an Employee’s Request for Exemption from the Vaccine Mandate under the ADA.
Under the ADA, an employee with a disability may ask their employer for a “reasonable accommodation” that allows the employee to perform the essential elements of the job. “Disability” is defined as a physical or mental impairment that substantially limits a major life activity.
A covered employer must provide an accommodation to an employee with a disability unless the request is unduly burdensome on the employer. In other words, an employer does not need to make such an accommodation if it is significantly difficult or expensive. Take the example of a blind writer who asks her company to provide her with a Braille keyboard. Most courts would find this request reasonable because it is not a great hardship on the company and allows the writer to perform her essential job functions.
Regarding the COVID vaccine, an employee with an autoimmune condition may fear the vaccine will cause their health condition to worsen and may seek an exception to the vaccine requirement as a reasonable accommodation for their disability. The inquiry, however, does not end there. Suppose the employer can justify denying the request based on undue hardship, such as the serious risk of contagion from unvaccinated employees to vaccinated employees? In that case, the courts may conclude the employee’s request is unreasonable. Under this scenario, a company may legally require the disabled employee to get the vaccine or face termination.
Notably, an employee who experiences anxiety simply out of fear of the vaccine’s side effects will likely not be deemed disabled and, thus, will not have the standing to request an accommodation under the ADA.
Employers Must Consider an Employee’s Sincerely Held Religious Belief Against Vaccines.
Under Title VII, an employer with 15 or more employees must accommodate an employee’s religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.
Accommodation requests usually relate to work schedules, dress, grooming, or religious expression at work. For example, a Jewish employee may reasonably request not to be scheduled for work during the Jewish Sabbath as a religious accommodation. Belief in a supreme being or an established religion is not strictly required as a sincerely held moral or ethical belief may suffice to support a reasonable accommodation request.
Employers may struggle to discern the depth of an employee’s religious, ethical, or moral objection concerning the new virus vaccine. Would an employee’s general vaccine hesitancy be sufficient? While the law remains unclear on this point, the courts would likely determine vaccine hesitancy is not, on its own, a sincerely held religious belief that requires accommodation. Further, given the public health risk associated with unvaccinated employees, the courts might find that a request to waive the vaccine mandate is an undue burden. Again, there may be states, such as California, that have a broader definition of a “religiously held belief,” thus requiring employers to afford more accommodations in the form of waivers to the vaccine mandate.
Mandating the COVID Vaccine Does Not Violate the Genetic Information Non-Discrimination Act (GINA)
Generally, GINA prohibits employers from asking employees questions about their genetic information. For example, an employer could not administer genetic tests to its employees to identify a genetic predisposition to cancer. Some employees have challenged the COVID-19 vaccines that use messenger RNA (mRNA) technology on the theory that this new technology may modify a recipient’s genetic makeup. They argue that requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. However, given the federal government’s position that the mRNA vaccines do not interact with our DNA, this argument is likely to fail. Employers may confidently assert that requiring employees to get an mRNA vaccine does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.
The Temporary Status of the Vaccine Authorizations Does Not Affect the Legality of Employer Mandates.
Some have argued that employer-mandated vaccination programs are illegal because current COVID‑19 vaccines are only authorized through Emergency Use Au
thorization (EUA), which is not final licensure under the U.S. Food and Drug Administration (FDA) regulations. In a federal court case in Texas, employees of a hospital claimed that the hospital wrongfully terminated them for refusing to get vaccinated because the vaccines are “unauthorized” and an injection requirement violates federal law governing “the protection of human subjects.” The Court soundly rejected this argument noting that the government had the requisite authority under current law to allow distribution and use of the new vaccines amidst a public health emergency. Further, the court rejected the argument that the employees were participants in a human trial because the hospital was not requiring them to participate in actual clinical trials. Lawyers for the employees promised to appeal the decision.
Employers Generally Can Require Vaccines. Should They?
There are complicated and nuanced issues that arise when an employer requires proof of coronavirus vaccination. The COVID-19 pandemic and vaccine create novel issues in our understanding of the intersection between science and the law. Employers must balance the requirement to provide a safe workplace for their employees with the rights of employees with disabilities or religious objections to remaining unvaccinated.
There are significant landmines for employers who use a “one size fits all” approach in their mandate. Under such an approach, an employer may need to scrutinize the depth of an employee’s religious conviction, the reasonableness of an accommodation based on disability, or the discriminatory impact of the workplace vaccine mandate on a protected class. Given that, we suggest caution to employers considering imposing a mandate. Exploring alternatives like offering incentives for vaccinated employees or social distancing and mask-wearing for unvaccinated employees may be a more prudent option.