Unless you’ve been living in a cave or are oblivious to your surroundings, you are well aware of the devastating toll that the coronavirus has taken on people and economies worldwide. As of this writing, in America alone, the death toll from this virus stands at 300,000, with many more deaths predicted before the pandemic is brought under control. The good news is that safe and effective vaccines are now being rolled out and administered. While full inoculation may not be available to all Americans for several months, the end of this tragedy may finally be in sight. This raises the question, in the employment context, “Can my employer mandate that I receive the vaccine as a condition of my continued or prospective employment?” The short answer is a qualified “YES!”
Private employers may mandate that their workforce receive the coronavirus vaccine in order to continue employment or be considered for positions with a company. This requirement is not unlimited, however. There are two exceptions to employer mandated vaccine programs. The first involves the American with Disabilities Act (ADA); the second involves Title VII of the Civil Rights Act of 1964.
The short answer is a qualified “YES!”
Vaccines are considered “medical exams” under the ADA and if they are to be required, must be job related and consistent with business necessity or justified by a direct threat. Employees who have a qualifying disability under the ADA that prevents them from taking the vaccine may be entitled to an exemption from a mandated vaccine policy. The EEOC has taken the position that employers must provide “reasonable accommodations” to employees that are exempt from a mandatory vaccination policy based on an ADA disability unless doing so would create an undue hardship. In considering what constitutes an undue hardship, factors to consider include significant difficulty or expense, the employer’s overall financial resources and the impact of the accommodation on the employer’s business operations.
Title VII Considerations:
Title VII of the Civil Rights Act of 1964 provides protection based on a “sincerely held religious belief.” The EEOC has held that protected religions are not limited to well recognized faiths. An employee’s religious belief or practice can be religious under Title VII even if no religious group espouses such beliefs or the religious group the individual professes to belong to does not accept such belief. In general, personal or ethical objections to a mandatory vaccination policy are insufficient. When an employee notifies the employer that the employee has a sincerely held religious belief that would preclude a mandated vaccination, the employer must provide that employee with a reasonable accommodation so long as that accommodation does not present an undue hardship. The undue hardship threshold for Title VII is different that that under the ADA and generally requires more than a di minimus cost to the employer’s business operation. Factors to consider here include the harm to the employer, the harm to employees, and the harm to third parties.
Historically the Occupational Safety and Health Administration (OSHA) has not mandated employee vaccinations, but has indicated employers may do so. Employees may claim that an employer that fails to provide a vaccination program have failed to provide a safe and healthy work environment under OSHA’s general duty clause. Employers need to be aware that the National Labor Relations Act makes it unlawful for an employer to interfere or restrain employees from joining together to advance their interests in topics such as workplace safety. If employees gather together to protest a vaccine program (or lack of one) and the employer takes any retaliatory action it could lead to an unfair labor practice charge being filed with the National Labor Relations Board, regardless of whether or not the employer is unionized.
As you can see, there are a number of questions and areas of potential uncertainty brought about by this national health crisis which can dramatically affect employment. We are here to help guide you through these turbulent times. A law firm that concentrates in employment related matters like ours can help navigate this maze of new laws. We can be contacted at (630) 375-1958 or through our website at www.boznoslawoffice.com.