The short answer? Yes. For something to be illegal (not allowed), there must be a violation of an employment law. Currently, there is no federal or state employment law making a vaccine requirement illegal. The Equal Employment Opportunity Commission (EEOC) has weighed in with guidance that answers some workplace vaccination questions. For example, the agency said that federal anti-discrimination laws don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC.
So, what does this mean for employers who have employees who refuse the vaccine? For one, you can terminate the employee. A federal judge recently sided with a large hospital system that chose to fire employees who refused the shot. The lead plaintiff who challenged the policy “is refusing to accept inoculation that, in the hospital’s judgment, will make it safer for [workers and patients],” the judge said. However, terminations are difficult on the workforce and turnover, for any reason, is costly.
For most other instances, we encourage you engage in an interactive dialogue to determine if the employee has either a religious reason for not getting the shot or that the employee has a disability which prohibits them from getting a vaccine.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer. The EEOC recommends obtaining support of the request either in a form from the religious organization or a letter from the religious organization referencing the need for the employee to be without a vaccine.
A vaccination mandate should be job-related and consistent with business necessity. Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” According to the EEOC, and employer must evaluate four factors to determine whether a direct threat exists:
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
The key recommendation for employer mandates is to have a solid policy in your handbook explaining the mandate, the importance of the mandate for your workforce, and outlining any steps necessary if employees wish to challenge the policy. A well drafted policy by an experienced employment law firm will keep your company protected and your employees safe and secure.
If you are an employer who would like to learn more about vaccine mandates, or would like assistance with developing a vaccine policy, please reach out to Sparks Law today at firstname.lastname@example.org.