In November, Pfizer, BioNtech, and Moderna all announced that they were applying to the Food and Drug Administration (“FDA”) for an emergency use authorization for their Covid-19 (“Coronavirus”) vaccine after concluding their Phase 3 clinical trials. If the authorizations are approved, the first injections of the vaccine could start in late December. As a result, there is a natural question of whether employers can require their employees to take the Coronavirus vaccine before returning to work when it becomes available.
Generally, the answer is yes with a few exceptions. Specifically, mandatory vaccine policies are allowed as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (“Title VII”) and medical accommodation requests under the American with Disabilities Act (“ADA”). While these types of policies are generally permissible, employers should carefully consider whether implementing such a policy is the correct decision for their company. If an employer does decide to adopt a mandatory Coronavirus vaccine policy, the employer should carefully craft the policy to avoid any missteps in the accommodation process.
Religious Accommodations under Title VII
Some employees may have religious objections to a mandatory Coronavirus vaccine policy. Under Title VII, an employee must show a “sincerely held religious belief” to establish an entitlement to a religious accommodation. Jurisdictions interpret “religious belief” differently. At least one court has held that a religious objection to a mandatory flu vaccine based on veganism was “plausible” because one could subscribe to veganism with sincerity equating to that of traditional religious views. By comparison, other courts have held that an employee’s opposition to vaccines was a personal belief that did not rise to the level of a more traditional faith.
An employer may still deny an accommodation request, even in cases where an employee can establish a sincerely held religious belief, if the employer can show that the request imposes an “undue hardship.” Under Title VII, courts consider harm to the employer, its employees, and third parties to determine whether there is an “undue hardship” on the employer that is sufficient to deny a religious accommodation request. Federal courts are split as it relates to whether mere speculative harm is sufficient to establish an undue hardship. At least one court, however, has found that exemptions to mandatory flu vaccine would have an undue hardship because allowing one employee to forgo a mandatory vaccination could put the health of vulnerable employees at risk.
Medical Accommodations under the ADA
Some employees may have medical objections to a mandatory coronavirus vaccine policy. Under the ADA, an employee requesting a medical accommodation must establish a “covered disability.” There is a federal circuit split regarding whether sensitivity to vaccines constitutes a “covered disability” under the ADA. The Eighth Circuit (which oversees Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) has held that alleged chemical sensitivities and allergies did not constitute a covered disability. By contrast, the Third Circuit (which oversees Delaware, New Jersey, and Pennsylvania) has held that a history of allergies and anxiety related to the possible side effects of a vaccine qualified as an ADA-covered disability.
As previously discussed above, an employer may still deny a medical accommodation request, even in cases where an employee can establish an ADA-covered disability, if the employer can show that the request imposes an “undue hardship.” But if an employee can establish an ADA-covered disability, the undue hardship standard under the ADA is more difficult for an employer to establish than the standard under Title VII for religious accommodation. The Supreme Court has held that to establish an undue hardship in the context of mandatory vaccines, an employer generally must show special circumstances demonstrating an undue hardship. Employers can likely avoid this problem by offering a vaccine that does not contain an ingredient that could trigger an employee’s medical condition (e.g., a vaccine without egg, swine, or fetal cell products).
Takeaway/Considerations for Employers
It is difficult to predict how courts will rule on mandatory Coronavirus vaccinations under both Title VII and the ADA. As it stands, the majority of the case law pertains to employers in the healthcare field engaged in direct patient care, so harm to third parties (vulnerable patients) is a significant risk. If an employer chooses to go forward with a mandatory Coronavirus vaccination policy, under current federal law they preferably should have a process in place for accepting and considering accommodation requests before rolling out the policy. Employers only have a federal law potential accommodation obligation in regard to religious and disability related claims. Employers should remember that these are broad terms, as discussed above. A carefully written mandatory vaccination policy should be subject to the accommodation process for requested accommodations, so employees have an avenue to make such a request. The accommodation process is an interactive process. As always, employers should carefully document the accommodation process and related steps from the beginning to the end.
Importantly, various state laws may be applicable and may also provide for potential accommodation obligations and duties under a particular state statute. Thus, an employer must consider not only federal law but additional potential state laws that may apply to the employer’s implementation of a vaccination policy.
As noted above, while these types of policies are generally permissible, employers should carefully consider whether implementing such a policy is the correct decision for their company. Just because you can, does not always mean you should. In addition to legal considerations, employers should also consider whether such a policy is necessary and the effect it may have on company culture. Further, in considering the implementation of such a policy a company should affirmatively consider obtaining advice from a consulting expert and/or experienced legal counsel to assist in the matter.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.