Various pharmaceutical companies have already begun distributing COVID-19 vaccines, causing some employers to consider incentivizing or even requiring employees to take the COVID-19 vaccine. Can an employer do this? Generally, yes, but an employer should be mindful of a particular employee’s religious and/or disability-based objections; and each employer should make a case-by-case assessment based on the facts related to each employee.
An employee may object to an employer-mandated vaccination due to his or her religious beliefs. Title VII of the Civil Rights Act prohibits employment discrimination based on religion which may include refusing to accommodate an employee’s sincerely held religious beliefs. Thus, an employer should consider reasonably accommodating an employee who objects to the vaccine due to “sincerely held religious beliefs.” An employer might reasonably accommodate such employee by allowing an exemption to a vaccine requirement and/or allowing a transfer to a position which does not require a vaccination.
However, an employer may not have to provide a “reasonable accommodation” if such accommodation would be an “undue burden” or cause “undue hardship.” At least one district court in Massachusetts has determined that allowing a particular employee to forego a mandatory vaccination could put the health of others at risk and/or was otherwise “unworkable” such that the employer would have faced an “undue hardship” by exempting the employee. Thus, an employee with a religious-based objection to the COVID-19 vaccine may, depending on the particular facts of each case, face an uphill battle in prosecuting a lawsuit under Title VII against his or her employer when the employer requires its employee to receive a vaccine.
Under the Americans with Disabilities Act, an employee’s disability may be another basis for an employee to object to an employer-mandated vaccination. Although an employee may allege a disability entitling him or her to a vaccination exemption, it is not always clear when an objecting employee actually has a “disability” under the ADA. Some courts have held that merely having an allergy may be insufficient to be a “disability”; and an employee likely has to show some sort of hospital records to sufficiently demonstrate that “disability.” Assuming that an employee can show a “disability” under the ADA, the employer should make an effort to reasonably accommodate that employee. Whether an accommodation is reasonable depends on the facts of each case, but reasonable accommodations may include such things as job restructuring, part-time or modified work schedules and/or reassignment to a vacant position.
However, not all employees with a disability are entitled to a reasonable accommodation. An employer may be relieved of a duty to accommodate if, depending on the circumstances of both the employee and employer, the particular accommodation would cause “undue hardship” to the employer. Moreover, the ADA may not impose liability on certain employers that require their employees to be vaccinated because COVID-19 may be classified as a “direct threat” which imposes 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. Nevertheless, as with Title VII concerns over religious-based objections to the vaccine, an employer should address disability-based objections on a case-by-case basis.
An employer generally has the authority to require or incentivize vaccinations amongst its employees but should accommodate religious and/or medical concerns on a case-by-case basis. Before making a decision to require the vaccination of some or all employees, employers should consult legal counsel to determine whether the decision may potentially violate Title VII or the ADA and how to reduce the risk of litigation.
This Comment was prepared by David J. Scotton, an Associate of the firm. Mr. Scotton practices all types of business and commercial litigation.