As clinical trials for a COVID-19 vaccine progress, many employers are asking whether they will be able to require their employees to be vaccinated as a condition of employment once a vaccine becomes available.
While neither the Equal Employment Opportunity Commission (EEOC) nor the Occupational Safety and Health Administration (OSHA) have taken a position regarding COVID-19 vaccine policies, their response to the 2009 H1N1 (swine flu) pandemic offers guidance to employers who are considering a mandatory vaccine requirement.
In 2009, OSHA took the official position that employers may require employees to get a vaccine but emphasized that the employee must first be “properly informed of the benefits of the vaccinations.” But an employer’s ability to require a vaccine as a condition of employment is not absolute. OSHA further explained that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.” On March 21, 2020, the EEOC updated its 2009 publication “Pandemic Preparedness in the Workplace and the ADA” to address current issues employers face during the COVID-19 pandemic. In its updated publication, the EEOC made clear that employers cannot compel all employees to receive a vaccine regardless of their pre-existing medical conditions or religious beliefs. Certain employees may be entitled to an exemption from a mandatory vaccination policy under the ADA or Title VII of the Civil Rights Act of 1964, while others may be entitled to object under their collective bargaining or employment agreement.
The most common objection to a mandatory vaccination policy is for medical reasons. Under the ADA it is unlawful for an employer to discriminate against a qualified individual on the basis of disability. Thus, an employee who objects to a vaccine policy based on a recognized ADA disability must be offered a reasonable accommodation unless doing so would cause an undue hardship for the employer resulting in significant difficulty or expense. Furthermore, an employee may object to a mandatory vaccination policy Under Title VII based on a sincerely held religious belief, practice, or observance. Similar to an ADA objection, once an employer receives notice that an employee’s sincerely held religious belief prevents them from taking a vaccine, the employer must provide a reasonable accommodation unless doing so would pose an undue hardship as defined by Title VII (more than de minimis cost to the employer’s business).
Besides potential objections under the ADA and Title VII, employers should also consider how to implement a mandatory vaccination policy with unionized or contracted employees. Under the National Labor Relations Act, employers with a unionized workforce will likely need to negotiate the implementation of a mandatory vaccination program. Courts in certain jurisdictions have held that hospitals cannot unilaterally impose a vaccine mandate without bargaining with the nurses’ union as required by the parties’ collective bargaining agreement. Additionally, an employee who is not “at-will” could argue that the vaccination requirement imposes an additional condition that is not a part of their employment agreement.
Even though mandatory vaccination requirements in the workplace are legal, employees are likely to be skeptical when implementing such a policy. In recognition of this skepticism the EEOC concluded that even in the height of a pandemic, “[g]enerally, ADA-covered employers should consider simply encouraging employees to get [a] vaccine rather than requiring them to take it.” Despite the EEOC’s guidance, it still may be worthwhile for some employers to consider implementing a mandatory vaccination policy when a COVID-19 vaccine becomes available to the public. Employers might ultimately be forced to accommodate disability or religious-based objections and negotiate with unions or contracted employees, but establishing and implementing clear policies that acknowledge and anticipate these potential objections before the release of a vaccine will significantly reduce the risk to employers as they continue to navigate these uncertain times.
If you have questions relating to employment or benefit matters, please contact a Kerr Russell attorney.
Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.
Olivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.
J. Luke Brithinee supports businesses and individuals with a variety of matters related to commercial transactions and works with clients to protect and enforce their intellectual property rights. From entity formation and organization through bankruptcy and restructuring, Luke helps guide businesses and individuals through a wide variety of challenges with a goal-oriented and client-focused approach. He also assists clients with estate planning, real estate transactions, and various intellectual property issues including, patents, trademarks, trade secrets, and licensing.
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Practice AreasLabor, Employment, Employee Benefits and ERISA