The short answer is “yes, if.”
The consensus in the legal community is that employers in the private sector can mandate employees to receive COVID-19 vaccinations if the mandate complies with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other applicable EEO laws.
Thus, the first threshold question is whether the employer must comply with such laws. In general, most employers with fifteen or more employees must comply with the ADA, Title VII, and other applicable EEO laws.
For employers with over fifteen employees, a COVID-19 vaccination policy must provide reasonable accommodations for individuals with disabilities or for sincerely held religious beliefs.
Reasonable Accommodations For Individuals With Disabilities
Under the ADA, a covered employer can have a qualification standard, such as a vaccination requirement, that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” A covered employer cannot use “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities.” 29 C.F.R. § 1630.10. However, the employer can use the standard, test, or other selection criteria if the covered employer can show it “to be job-related for the position in question and is consistent with business necessity.” Id. If the safety-based qualification standard tends to screen out individuals with a disability, the employer is required to show that an unvaccinated employee would pose a direct threat due to 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.” 29 C.F.R. 1630.2(r).
The EEOC has advised that employers should conduct an individualized assessment using four factors to determine whether a direct threat exists:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
See U.S. Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (December 16, 2020) (last visited March 6, 2021).
If an employee cannot be vaccinated due to disability and it is determined that the employee causes a direct threat to the worksite, the employer can exclude the employee from the worksite—or take any other action—if the employer cannot provide a reasonable accommodation. Although employers can exclude the employee from physically entering the workplace, the employer is prohibited from automatically terminating the worker.
The EEOC listed several ways an employer can satisfy its requirement to provide reasonable accommodations. The list includes, but is not limited to:
- providing employees with additional protective gowns, masks, gloves, or other gear
- erecting barriers that provide separation between employees with a disability and coworkers or the public
- eliminating or substituting “marginal” functions of the job (meaning less critical or incidental job duties)
- temporary modifications to work schedules or moving the location of where one performs work (if feasible)
- temporarily excluding the employee from the worksite (e.g., providing protected leave, conducting work virtually)
Just like with any reasonable accommodation, an employer and employee should discuss possible ideas to ensure creativity and flexibility.
Reasonable Accommodations for Sincerely Held Religious Practice or Belief
If an employee is unable to receive a COVID-19 vaccine due to a sincerely held religious practice or belief, the employee must notify the employer. Once the employer has notice of the sincerely held religious practice or belief, the employer must provide reasonable accommodations unless it would pose an “undue hardship” on the employer. Courts have interpreted “undue hardship” to mean more than a de minims cost or burden. The list above includes examples of reasonable accommodations that an employer may utilize in response to an employee unable to receive a COVID-19 vaccine due to a sincerely held religious practice or belief.
Again, an employer and employee should discuss the possible accommodations.
Recent Federal Litigation
On February 28, 2021, the first lawsuit relating to an employer’s COVID-19 vaccine mandate was filed in New Mexico. The lawsuit alleges that an employer’s vaccine mandate runs afoul with the FDA’s emergency use authorization designation. Under 21 U.S.C.§ 360bbb-3(e)(1)(A)(ii):
The Secretary shall . . . establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including . . . ensur[ing] that individuals . . . are informed . . . of the option to accept or refuse administration of the product, of the consequences, if any, of refusing the administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
The outcome of this lawsuit will have wide reaching effects on the status of whether employers can require an employee to receive a COVID-19 vaccine. We will update this article upon the resolution of the lawsuit.