States have started distributing COVID-19 vaccines. Credit: Marko Geber / Getty Images
Editor’s Note: The Equal Employment Opportunity Commission, the federal agency responsible for enforcing laws prohibiting discrimination in the workplace, said on Dec. 16 that employers can require workers to vaccinate before entering the workplace to let. After two COVID-19 vaccines received emergency approval in the US, some people fear they could be discharged if they don’t want to take the vaccine. We asked legal scholar Ana Santos Rutschman, who teaches a course on vaccination law at Saint Louis University, to explain the choice and rights of workers and employers.
Can employers require employees to be vaccinated?
The general rule is yes – with a few exceptions.
Under US law, private employers can establish general working conditions, including the introduction of health and safety in the workplace. Employees’ obligation to be vaccinated against diseases that could affect occupational health and safety is considered part of this ability.
Does the rule apply to COVID-19 vaccines?
At the start of the pandemic, there were some doubts as to whether the general rule for COVID-19 vaccines would apply as the first vaccines available in the US were not fully approved by the Food and Drug Administration.
They have been given emergency clearance which is temporary permission to commercialize the vaccines due to the public health crisis facing the US. This is the first time a new vaccine has been granted emergency approval. For this reason, some legal scholars have asked whether current laws apply to temporarily approved vaccines.
This question was answered when the Equal Employment Opportunity Commission issued guidelines that give employers the right to implement mandatory COVID-19 vaccination guidelines.
From a legal point of view, this view is based on the fact that the law allows employers to set requirements to ensure that workers do not pose a threat to the “health or safety of others in the workplace”. The EEOC addressed emergency vaccines as part of the measures employers can adopt to achieve this goal.
Therefore, the general rule applies, and employers should be able, within certain limits, to require workers to be vaccinated against COVID-19. These limit values - including the following exceptions – correspond to the general exceptions for vaccinations prescribed by the employer.
Are there any religious exceptions?
Title VII of the Civil Rights Act stipulated that the employer cannot require that worker to be vaccinated if a worker has a genuine religious belief that is incompatible with the vaccination. The EEOC has traditionally interpreted the concept of “religious belief” very broadly. However, rejecting a vaccine cannot be a personal or politically motivated belief.
If an employee qualifies for religious exemption, the employer must attempt to accommodate the employee appropriately. An example of housing would be where the employer lets the employee switch from personal to remote work while COVID-19 poses a public health risk.
However, the employer is not required to provide accommodation if this would lead to “undue hardship”. Typical cases of undue hardship are situations where the placement would endanger the health and safety of other employees, or where the placement is too costly or logistically burdensome to implement.
In the event of a dispute over what constitutes undue hardship for the employer, a court is usually asked to resolve it based on the cost of providing accommodation and the difficulty the employer has in implementing it.
How about disability-related exceptions?
The balance of rights between a disabled worker and her employer is similar to that described above. Under the American with Disabilities Act, an employee who is disabled and cannot safely receive a vaccine is entitled to an exemption and the employer must make reasonable provision. However, the law also stipulates that employers do not have to provide accommodation that would lead to undue difficulties.
The technical question here was whether employers could impose a COVID-19 vaccination, as the Disabled Americans Act severely limits employers’ ability to request medical exams. In its December 16 guidelines, the EEOC made it clear that COVID-19 vaccines do not fall into the “medical examination” category.
The requirement to vaccinate employees therefore does not violate the federal law on disabilities.
What if the employer cannot provide accommodation?
If an employee is entitled to religious or disability-related exemption but the employer is unable to provide accommodation due to undue difficulty, the employer has the right to exclude the employee from the job.
Given the broad rights that the law gives employers to promote health and safety, in some cases it is possible for an organization to go further and terminate the employment relationship if an employee refuses to be vaccinated and there is no sensible way to get one Provide accommodation.
For example, if there is no reasonable provision that an employer can provide a barista to allow her to continue making lattes in the coffee shop where she works, the employer may be able to terminate their employment.
However, the EEOC guidelines specifically state that the inability to adequately accommodate a worker does not automatically give the employer the right to fire him. Whether the cafe could actually terminate its unvaccinated barista depends on a number of factors, including state law, union agreements, and other potentially applicable federal requirements.
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Ana Santos Rutschman, Assistant Professor of Law at Saint Louis University
This article is republished by The Conversation under a Creative Commons license. Read the original article.
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