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Mandatory COVID-19 Vaccination Requirements for Employees – What employers need to know

By: Ronald S.Stadler and Jonathan E.Sacks

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With the recent FDA approval of the Pfizer COVID-19 vaccine, the issue of vaccination requirements has been on the forefront of the media. Employers across the country will need to consider whether a mandatory vaccination policy is appropriate for their business.

Employers may implement mandatory vaccine policies

The Equal Employment Opportunity Commission (EEOC) has issued guidance that federal employment laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 and other equal employment opportunity considerations. The Department of Justice’s Office of Legal Counsel also released an opinion that the Emergency Use Authorization status for certain COVID-19 vaccines does not prevent public and private entities from imposing vaccine requirements.

Employers may also, to a degree, incentivize employees to become vaccinated

Employers can, and do, offer incentives, monetary or additional time off with pay, to employees who become vaccinated. While there is no specified limit on the amount of the incentive, the EEOC also has advised that an incentive for vaccination should not be “so substantial as to be coercive” if the vaccine is administered by the employer or an agent of the employer, because this may pressure employees to disclose confidential medical information if they choose not to be vaccinated.

Employers may need to accommodate some employees when requiring vaccines

If an employer incentivizes or requires employees to be vaccinated, they must be cognizant of the ADA and Title VII requirements that they reasonably accommodate an employee’s sincerely held religious beliefs or disability.

ADA

Under the ADA, a qualified individual with a disability can request an accommodation from the employer to enable the employee to perform their job. Once an employee requests an accommodation, the employer must engage in an interactive process to identify whether an accommodation exists or if providing an accommodation would be an undue burden on the employer. An employee is not entitled to the exact accommodation that he or she wants; the proposed accommodation only needs to be reasonable under the circumstances. Employers can also request medical documentation to support the requested accommodation. It is important for employers to consider each request for an accommodation on a case-by-case basis and consider the impact of exempting an employee from a vaccination requirement against business needs and the impact on other employees.

Title VII

Under Title VII, an employee can request an accommodation from a workplace practice or policy if it conflicts with their exercise of a sincerely held religious belief. Like the ADA, employers are required to engage in an interactive process with an employee who requests and accommodation for a sincerely held religious belief. The employee does not need to identify a commonly recognized religion or belong a congregation, just a sincerely held belief. Once a request for an accommodation is made, the employer must review the request on a case-by-case basis to determine whether an accommodation exists that will not cause an undue hardship. An undue hardship has been described by the Supreme Court as an accommodation that would cause more than minimal hardship to the employer or other employees. Both economic and non-economic costs can be considered, including increases to safety risks or the risk of legal liability for the employer.

Take Away

When considering whether to implement a mandatory COVID-19 vaccination policy or an incentive policy, employers need to consider the potential accommodation obligations, workforce and employee relations issues, union contract issues, and the potential for a private lawsuit challenging the requirement. In developing a policy, employers may want to ask employees about their vaccination status and/or require proof of vaccination. While this information is confidential, if a substantial amount of the workforce is already vaccinated a mandatory program may not be necessary.

Moreover, there is no one right answer to whether a disability or religious belief needs to be accommodated. Each request is unique and will require the employer to consider all relevant facts related to their business and the employee’s job duties to determine whether an accommodation exists. While a remote work arrangement, reassignment, masking and social distancing requirement, or periodic testing may be reasonable in one case, the same accommodation could be an undue hardship in another.

If you are considering implementing a mandatory COVID-19 vaccination policy or incentive program for your employees, the employment law attorneys at Kopka Pinkus Dolin can assist you with creating the right policy for your business or addressing requests for disability or religious accommodations.

Please contact Senior Attorney, Jonathan E. Sacks at jesacks@kopkalaw.com or Senior Attorney, Ronald S. Stadler at rsstadler@kopkalaw.com, the authors of this article for more information.

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