By: Karen Davila
Can an employer require employees to be vaccinated against influenza? And, a COVID-19 vaccine likely will be approved in the not-to-distant future. What about that vaccine when it becomes available? These are questions with which many organizations are grappling today. With the confluence of what is expected to be a very active influenza season and the ongoing and unprecedented COVID-19 pandemic, employers are contemplating how best to protect their workforce and clients/customers/patients.
One of the most effective ways to achieve this is a mandatory vaccine policy, but is that right for your organization? Mandatory vaccination programs are not new. Depending on your business, a mandatory vaccine policy may be the industry norm. What factors should you consider? What processes would you need to develop to address exceptions?
CAN YOUR BUSINESS MANDATE VACCINATIONS?
In general the answer is yes. Although federal and state laws may vary, such programs are permissible provided any mandatory vaccination policy incorporates processes to address the required exceptions: medical accommodations under the Americans with Disabilities Act (ADA); and religious accommodations under Title VII of the Civil Rights Act of 1964 (Title VII).
WHAT IF AN EMPLOYEE REFUSES TO BE VACCINATED?
Accommodations under the ADA
An employee refusing vaccination because of a disability must provide medical documentation of the existence of that disability. Mere sensitivity to vaccines may not be sufficient to constitute a covered disability. Courts have taken opposing positions on this so it is important to confer with your legal counsel if faced with nuanced questions concerning whether a disability requiring accommodation exists.
Once the existence of a covered disability is established, the employer must either provide an accommodation or demonstrate through “special circumstances” that an undue hardship exists in allowing any such accommodation. If accommodations can be made without undue hardship, the employer must provide such accommodations. In the context of vaccines, options for accommodations may include requiring the employee to wear face coverings at all times while on the business premises (and additional PPE, as warranted) or use of alternative vaccine formulations that do not contain the ingredients associated with employee’s medical condition (e.g. egg or swine byproducts).
Accommodations under Title VII
Although similar accommodations may be provided under Title VII, the threshold for an employee to be eligible for such accommodations is higher. An employee seeking a religious accommodation must prove that s/he has a “sincerely held religious belief.” Because an employee’s right to express his/her religion in the work place is not without limits, any expression of that religion that disrupts or negatively impact operations may be restricted. The employer is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious, sincerely held, and gives rise to the need for accommodation. The employer is not required to provide a religious accommodation that results in more than a de minimis burden, whether economic or non-economic. In at least one reported case in a health care setting, a court found that a religious accommodation and exemption from the mandatory flu vaccine would pose an undue hardship (more than a de minimis burden) by putting the health of vulnerable patients at risk.
The initial analysis of any request for a religious accommodation must focus on whether a person’s objection to the vaccination is actually religious. Ethical or personal objections generally do not meet that threshold. Anti-vaxxers may have a difficult time convincing an employer that their personal beliefs on vaccinations rise to the level of religious beliefs. Nonetheless, employers must tread carefully in this space as some courts broadly construe religious beliefs to include any belief held so sincerely by an employee as to take on a role in their life similar to traditional religious beliefs.
In many cases, religious accommodations are sought for sincerely held religious beliefs concerning the ingredients in the vaccine itself. Such religious beliefs may prohibit the consumption of one or more of the ingredients in the vaccine formulation, such as products that, if consumed, would violate kosher or halal rules.
A particularly challenging question arises when an employee requests accommodation for a sincerely held religious belief where that belief is based on false information. One such example is the opposition to the influenza vaccine because the employee believes it contains or was formulated using fetal cells. While some vaccines (e.g. rubella, measles, chickenpox and smallpox) may use fetal cells in the development of the vaccine, none of the currently approved formulations of the influenza vaccine do. And, although some of the COVID-19 vaccine formulations currently in development and testing are being manufactured using fetal cells, no vaccine has yet been approved, so for the moment, decisions on this issue can be deferred. A falsely held belief that the influenza vaccine contains fetal cells likely is not sufficient to require the employer to grant an accommodation.
The ability to demonstrate the vaccine’s ingredients is important in challenging certain requests for accommodations. And, if alternative formulations are available, the employer should consider those, thereby reducing exceptions and improving compliance with the mandatory vaccine policy. Regardless, caution should be exercised whenever considering denying an accommodation for a person’s religious beliefs.
Read Part 2.