Recently, it seems that as a new COVID-19 vaccine has begun its slow distribution across the county (and the world), that some people have a glint of hope returning to their eyes. Maybe it’s true, maybe our learned scientist, researchers, and modern technology can take a novel coronavirus and in less than a year create an effective vaccine. However, it seems that at this point, more questions than answers are traveling with those vaccine convoys; and many of those questions are being asked by employers and employees. Specifically, employers are curious as to whether they can (or should) mandate that their employees get a vaccine as a condition to coming into work, and alternatively, employees have started to ask, if their employer can require them to get the Covid-19 vaccine.
At this point, my best guess is a hesitant, yes.
Under the federal Occupational Safety and Health Act (OSHA) and many states’ laws, employers are obligated to provide a workplace free from serious recognized hazards. To comply with that requirement, employers have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity. However, the extent to which an employer can implement policies mandating that employees be vaccinated depend largely on the employer’s industry and location. For example, policies mandating vaccinations are more likely to be appropriate for employers in the healthcare industry and other environments where employees provide services to individuals who are at a high risk of having serious complications if they were to contract the COVID-19 virus (think nursing homes).
Although this question has not yet been answered by a court, previously, Courts in several jurisdictions have held that workers can be required to receive vaccinations, such as rubella or flu vaccinations, as long as the requirement is job-related and consistent with business necessity. Many employers have followed that guidance and have set the precedent for mandating vaccines.
On the other hand, even if an employer’s vaccination requirement qualifies as a legitimate health and safety requirement, under certain circumstances, some employees may nonetheless be exempt from complying. The U.S. Equal Employment Opportunity Commission (“EEOC”) has identified two principal exemptions to mandatory vaccination requirements. An employee may be exempt from compliance with a mandatory vaccination policy if they have a qualifying disability under the Americans with Disabilities Act (“ADA”) which prevents them from safely receiving the vaccine. For example, according to prior Center for Disease Control (“CDC”) guidance related to the flu vaccine, persons with certain health-related conditions, such as life-threatening allergies to ingredients in vaccines or disorders, should not be vaccinated for the flu. Further, the EEOC advises that employers should accommodate a pregnant employee’s request to not be vaccinated, and other impairments resulting from pregnancy could qualify as disabilities under the ADA warranting accommodation.
Similarly, under Title VII of the Civil Rights Act of 1964, an employee who objects to receiving a vaccine based on a sincerely held religious belief, practice, or observance also may be exempt from a mandatory vaccination requirement. It is important to note that courts have broadly interpreted “religion” in the context of required vaccination policies. For example, at least one federal court has concluded that veganism qualifies as a sincerely-held religious belief exempting a vegan employee from being required to receive a flu vaccine because receiving a vaccine, which was produced from chicken eggs, would be against the employee’s vegan beliefs.
Just as with any other request for an accommodation, after receiving a request to be relieved of a vaccination requirement as an accommodation, whether due to disability or religious-related reasons, an employer must engage in an interactive process with the objecting employee to determine if it can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer. When an employer receives a request from an employee to be exempt from the employer’s mandatory vaccination requirement for a disability-related reason, an employer may require verification that the individual has an actual disability and can require the employee to provide disability-related documentation that substantiates the employee’s need for an accommodation as a result of that disability.
If it turns out that the requesting employee does in fact warrant an accommodation, the employer may be required to make an exception for that employee. For example, if an employee has a medical condition that could be aggravated by the vaccine, or a sincere religious objection, the employer could consider moving the employee from a customer facing role to one that has limited contact with people may be another option as well or allowing the employee to work remotely, if possible.
At this point, it’s just too early to have all the answers. If I had to guess, I would say that most private employers will not mandate the vaccine and some of those that do (especially the bigger companies) will find themselves in court eventually. When these questions do show up in front of a judge, my guess is that the courts will set a high bar for employers before allowing them to impose vaccine mandates under the current laws, and legislators are going to have to pass new laws to provide more clarity.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://