Wichita, Kan. (August 4, 2021) – Can a company require its employees to be fully vaccinated against COVID-19 as a condition of their employment? The short answer is, it depends.
The long answer is that a company can require its employees to receive the COVID-19 vaccination as long as the policy does not violate existing statutory or anti-discrimination laws such as Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA) , Americans with Disabilities Act (ADA), Genetic Information Discrimination Act (GINA), or similar laws. Employers should also consider state and local laws specific to them when developing and implementing such guidelines.
As the Wall Street Journal noted, many companies have recently started implementing policies that require their employees to receive the COVID-19 vaccine or face termination. These companies can also allow their workers to make a valid exception to such guidelines. The U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws, has provided the following guidelines on mandatory vaccination:
Federal EBO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EBO considerations that discussed below. These principles apply when a worker receives the vaccine in the community or from the employer.
In certain circumstances, Title VII and the ADA require an employer to make reasonable accommodation for workers who are not vaccinated against COVID-19 due to a disability or a sincere religious belief, practice, or observance, unless the provision of housing would doing this represents an unreasonable hardship for the employer’s business. The assessment of undue hardship depends on whether the placement is for a disability (including pregnancy-related circumstances that constitute a disability) or for religion.
As with any employment policy, employers who are vaccinated may have to respond to allegations that the requirement differently affects or disproportionately excludes workers based on race, color, religion, gender or national origin under Title VII (or age under the Age Discrimination Act) employment (40+)). Employers should keep in mind that some workers are more likely to be affected by compulsory vaccination because some people or demographics may face greater barriers to getting COVID-19 vaccination than others.
It would also be unlawful to apply a vaccination requirement to employees who treat employees differently based on disability, race, color, religion, gender (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless it is appropriate a legitimate, non-discriminatory reason.
In a recent case, Jennifer Bridges et al. v Houston Methodist Hospital, et al., the U.S. District Court for the Southern District of Texas upheld a mandatory vaccination policy for the Houston Methodist Hospital, which in part found:
Bridges says she has to be injected with a vaccine or discharged. This is not a compulsion. Methodist tries to save lives without giving them the COVID-19 virus. It’s a choice made to make employees, patients, and their families safer. Bridges is free to choose to accept or decline a COVID-19 vaccine; However, if she refuses, she will simply have to work elsewhere.
If an employee refuses an assignment, change of office, earlier start time, or other instruction, they can be duly dismissed. Every employment includes restrictions on the behavior of the employee for remuneration. This is all part of the bargain.
According to the EEOC, reasonable accommodation for unvaccinated employees could include wearing a face mask, working at a social distance from colleagues or non-employees, working on a changed shift, taking regular COVID-19 tests, being able to telework, or being reassigned. Adequate accommodation should be based on the specific circumstances and job roles of the employee in the company.
When determining what to include in a mandatory COVID-19 vaccination policy and how the policy will be implemented, organizations should consider at least the following:
- The purpose and intent of the policy. A mandatory COVID-19 vaccination policy should be the legitimate business reason for the policy.
- Specific details on vaccination policy. This section of the policy should take into account time frames, costs (ie will the employer compensate or provide vaccination), and verification of vaccination compliance.
- A clearly defined exception procedure from the directive. This section of the policy should clearly define who can be exempted from the mandatory COVID-19 vaccination policy and the forms of communication regarding the request for exemption. Businesses should be willing to discuss available accommodations with employees and whether such accommodations would pose undue hardship to the operation of the business.
- Think long term. A company should also consider how the mandatory COVID-19 vaccination policy will be implemented in the future. If the purpose and intent of the policy change, a company should be ready to update its policy with the changes in effect and potential (e.g. additional vaccination requirements, duration of the policy, etc.).
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.