R. Patrick Bolling

R. Patrick Bolling
Associate

Thomas M. Winn III

Thomas M. Winn III
Principal

Pfizer’s COVID-19 vaccine was approved by the FDA last Friday and distribution has already begun. Yet in a November Gallup Poll, only 58 percent of Americans said they would get a COVID-19 vaccine, up from a low of 50 percent in September.

Many employers, who have struggled to implement expensive safety protocols during the pandemic, are hoping for a vaccinated workforce. But what happens if an employee refuses to get the COVID-19 vaccine?

Can employers require their employees to be vaccinated?

The short answer is yes, unless employees are protected by certain equal employment opportunity or workplace safety laws or a collective bargaining agreement. Employers in every industry should seriously consider requiring or at least strongly encouraging COVID-19 vaccinations to enter your workplace.

Who can refuse a COVID-19 vaccine?

Employers routinely administer flu vaccines at work so a COVID-19 vaccine at work does not break entirely new legal ground.

Generally speaking employees can refuse vaccinations if they:

  • Need a disability accommodation
  • Have a sincere religious objection
  • Have reason to believe they may experience a severe reaction to a vaccination
  • Are subject to a collective bargaining agreement (CBA) under the National Labor Relations Act (NLRA). (There still may be bargaining obligations with newly unionized employees even if the parties have not yet negotiated a CBA.)

If an employee objects to your vaccination program based on a disability, religious belief, safety concern, or CBA, that doesn’t mean you can do nothing. Your response will depend heavily on your specific circumstances and the legal precedents that govern your jurisdiction.

Disability Exemptions to Vaccination

The Equal Employment Opportunity Commission (EEOC) updated its 2009 guidance on H1N1 as it relates to the ADA and Title VII. The update makes it clear that covered employers can’t require all employees to take the flu vaccine regardless of their medical conditions or their religious beliefs during a pandemic.

Some employees may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability. In that case, a reasonable accommodation may be required, but only if it doesn’t cause an undue hardship (significant difficulty or expense) to the employer.

Religious Objections to Vaccination

Once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. For religious accommodations, undue hardship is defined by Title VII as “more than de minimis cost” to the operation of the employer’s business, which is a lower standard than the ADA.

Determining the sincerity of another person’s religious beliefs is difficult, and the lines aren’t clear. For example, a federal court in Ohio held that Title VII might cover a vegan’s request to be excused from a mandatory vaccination policy if the vaccine was animal-tested or contains animal by-products, as long as the employee subscribes to veganism with a sincerity equating that of traditional religious views. In this case, the employee had written essays about veganism with Biblical excerpts.

Personal Safety Objections to Vaccination

Also in response to the 2009 H1N1 pandemic, the Occupational Safety and Health Administration issued an opinion letter regarding whether an employer can require flu shots. Although OSHA doesn’t require employers to vaccinate their workforce, employees need to be properly informed of the benefits of the vaccinations.

The OSHA guidance—much like the EEOC’s ADA guidance—states if an employee has a reasonable belief they have a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) they may have rights under OSHA, including those related to whistleblowers.

Possible Protections for Organized Labor

Employers with a collective bargaining agreement might face additional challenges if they choose to require vaccination against COVID-19. Generally, the NLRA requires employers to provide unions with notice and an opportunity to bargain over most major decisions unless the topic is covered in the CBA or the union has waived its right to bargain over such issues. In 2012, the National Labor Relations Board held that the adoption of a new flu vaccine policy is a mandatory subject of bargaining.

 What can employers do to prepare for the COVID-19 vaccine?

  • Decide what information you’ll need if you are forced to make employment decisions based on vaccination status.
  • Survey employees for interest in an in-house vaccination, like you may do when you schedule flu vaccinations.
  • If you don’t plan to vaccinate in-house for COVID-19, you may want to think of another way to find out who is or isn’t vaccinated if you plan to make employment decisions based on vaccination status
  • Create a plan to protect your employees’ private medical information.

What can employers do once the COVID-19 vaccine is widely available?

The EEOC suggests encouraging, rather than requiring, COVID-19 vaccinations. While vaccine mandates may be unpopular among many employees for now, comfort with the vaccine itself generally appears to be increasing.

If you are writing a COVID-19 vaccine policy, or if any employees have refused vaccinations or if you expect that they will, you should talk to counsel. Since the COVID-19 vaccine has become politicized to a degree, HR professionals can expect to face vaccine objections during 2021 and will need help to avoid potential liability.