Add It To The List: The Covid-19 Vaccine Conundrum

by Edward Easterly, Esq.

Remember January of 2020? Everyone was blissfully ignorant that people apparently did not know how to wash their hands or cover their mouth if they sneezed. There were no arguments about masks or social distancing in the workplace. The good old days. Since March of 2020, the COVID-19 pandemic has held the country hostage, caused heartbreak for families, and has altered the way people interact and conduct business. The COVID-19 vaccines, however, provide some semblance of hope that we can one day return to normal, both in our personal lives and in the workplace. With the vaccine comes various questions: Can an employer mandate that its employees receive the vaccination. The answer, not surprisingly, is not a simple “yes” or “no.”

With regard to the question of “can” an employer mandate the vaccine, the answer is “yes, but.” In December of 2020, the Equal Employment Opportunity Commission (“EEOC”) issued Guidance addressing the issue of mandating the vaccination. According to the EEOC Guidance, employers can require workers to get vaccinated against COVID-19, with certain exceptions. 

In this regard, employers must provide a waiver process for individuals who are unable to receive the vaccination for medical reasons or due to a sincerely held religious belief. Employers must adopt a written policy which informs employees of their rights to request a waiver, the time period to provide such a waiver request, the information which must be provided, and the consequences for failing to receive the vaccination if the waiver is not obtained. 

By way of example, if an individual has a medical condition that may cause them to have a severe allergic reaction to the COVID-19 vaccine or a religious belief that precludes them from receiving the vaccine (i.e., certain Catholic leaders have raised concerns about the Johnson & Johnson vaccine), an employer cannot mandate that employee receive the vaccination. In such cases, the employer must offer a reasonable accommodation to the employee, such as working remotely or continuing to wear a mask, as long as the accommodation does not cause an “undue hardship” for the employer. If there is no accommodation possible, the employer will need to determine if the employee has other rights under federal, state, or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act or the Americans with Disabilities Act (“ADA”).

Employers must be mindful that if a religious belief is an issue, they should not act as if they are Magnum P.I. Unlike a medical inquiry, an employer should not generally request supporting information or documentation to verify a sincerely held religious belief. If, however, there is an objective basis for questioning the sincerely held religious belief (think of George Costanza and the “Human Fund” in Seinfeld), an employer can request supporting information. Employers must err on the side of caution when questioning a religious belief and only do so if there is a legitimate reason based on the factors set forth herein. 

Employers must also be mindful of the ramifications if an employee refuses to receive a COVID-19 vaccination and does not have a medical or religious reason for such a refusal. If the foregoing were to occur, the employer should discuss with the employee to determine the reason(s) for refusing the vaccination and attempt to clarify the issues. If the employee continues to refuse the vaccination, an employer can attempt to accommodate the individual; inform the individual that they are not permitted to work until they obtain the vaccine, or it is no longer a requirement of the workplace, or terminate the individual’s employment. Employers must be consistent with their handling of these matters. As with any policy, an employer cannot treat employees dissimilarly, or it may open the door for a different type of discrimination lawsuit. 

If an employer decides not to mandate the COVID-19 vaccine but merely recommends that workers receive the vaccination or provides some “incentive” to receive the vaccine, additional issues should be considered. Pursuant to the EEOC Guidance, employers are permitted to request that employees provide proof of the COVID-19 vaccination. However, employers should not extend any line of questioning beyond “did you or did you not receive the vaccine.” If an employer requests information from its workers as to “why” an individual did not obtain the vaccine, it may elicit information on medical information and therefore come under the auspices of the ADA. If an employer wishes to provide an “incentive” to employees to receive the vaccine, it must ensure that any such incentive programs are in compliance with the applicable state, federal, and local laws to avoid claims of discrimination in the workplace. 

No matter how an employer decides to proceed with regard to the COVID-19 vaccine, it is likely to cause issues in the workplace. As such, employers must be prepared with a well-written policy and the ability to answer questions on the vaccine. Hopefully, by January of 2022, we are back to in the realm of normal and dealing with regular workplace problems (but still questioning who knows how to wash their hands properly).

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