Navigating Employer-Required Vaccinations: Legal Considerations
Employer Vaccine Requirements Post PandemicThe question of employer-required vaccinations gained prominence during the COVID-19 pandemic, yet it's a longstanding issue with implications extending beyond the crisis. Amidst the pandemic and beyond, critical inquiries persist:
Can an Employer Require Vaccinations?Private employers possess broad discretion in establishing employment conditions, including vaccination requirements. Pre-pandemic, certain sectors like healthcare and education mandated vaccines for specific roles. Amidst the pandemic, many employers enforced vaccination mandates to ensure workplace and public safety.
Given that employment is considered at will in the first place, and that employers have an obligation to maintain a safe workplace for all of their employees, having a policy that all employees be vaccinated is within their discretion. Note, however, that the employer will still have to address requests for exemption based on religious or disability rights, as described below. Can an Employer Require Proof of Vaccinations?In most cases, the answer is yes, so long as:
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Can an Employee Get an Exemption from a Vaccine Requirement Because of a Disability or Medical Condition?
Employees with disabilities may seek exemptions from vaccine requirements if vaccination poses harm due to their condition.
The employee should be prepared to share enough information from their health care provider to establish the medical condition and the recommendation not to be vaccinated. Though the employer must be careful not to request private medical information not necessary to evaluate the request for accommodation, the EEOC has clarified that:
If it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).
Once the need for accommodation is established, the employer must engage in an ‘interactive dialogue’ with the employee about how the request might be accommodated. What is reasonable is always fact-specific.
In some situations, a reasonable accommodation could be fully remote work.
Remember that the employer is only required to make reasonable accommodations, and there are some situations in which nothing reasonable is available and the employee may be terminated for not getting vaccinated. For example, it could be reasonable to allow an employee whose daily functions are entirely performed on a computer and phone to work remotely, and provide them with the tools to do so. In contrast, someone whose job requires them to interact face to face (consider EMTs and other health care workers) can not be reasonably set up to work remotely.
The employee should be prepared to share enough information from their health care provider to establish the medical condition and the recommendation not to be vaccinated. Though the employer must be careful not to request private medical information not necessary to evaluate the request for accommodation, the EEOC has clarified that:
If it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).
Once the need for accommodation is established, the employer must engage in an ‘interactive dialogue’ with the employee about how the request might be accommodated. What is reasonable is always fact-specific.
In some situations, a reasonable accommodation could be fully remote work.
Remember that the employer is only required to make reasonable accommodations, and there are some situations in which nothing reasonable is available and the employee may be terminated for not getting vaccinated. For example, it could be reasonable to allow an employee whose daily functions are entirely performed on a computer and phone to work remotely, and provide them with the tools to do so. In contrast, someone whose job requires them to interact face to face (consider EMTs and other health care workers) can not be reasonably set up to work remotely.
Can an Employee Get an Exemption from a Vaccine Requirement Because of a Disability for Religious Reasons?
An employee who believes that a job requirement, including a vaccine requirement, interferes with a sincerely held religious belief may request an accommodation. It is not required that this belief align with tenets of a recognized, established religion. An employer may, however, ask for information to support the claim that the employee's belief is both religious in nature (as opposed to an opinion or personal preference) and that the belief is sincerely held.
As with a request for a disability accommodation, the employee will have to explain what the conflict is between their religious belief and the vaccine requirement. The employer, in turn, is allowed to make certain inquiries to assess whether the belief is both religious and sincerely held. As explained by the EEOC:
"Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation."
Objections to the vaccine that are based upon social, political, or personal preferences, or on concerns about side effects of the vaccine, do not qualify as “religious beliefs," under the law, and will not trigger a requirement to accommodate (though some concerns about side effects, if related to an existing disability, could trigger a requirement to accommodate the disability).
Whether an accommodation is reasonable and should be offered follows much the same analysis as the disability accommodation request described above. One additional wrinkle for religious accommodation requests is that the law allows an employer to deny a request if the burden on the employer is more than "de minimis." This means essentially employers have somewhat more leeway to deny an accommodation for a religious request than for a request associated with a disability or medical condition.
As with a request for a disability accommodation, the employee will have to explain what the conflict is between their religious belief and the vaccine requirement. The employer, in turn, is allowed to make certain inquiries to assess whether the belief is both religious and sincerely held. As explained by the EEOC:
"Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation."
Objections to the vaccine that are based upon social, political, or personal preferences, or on concerns about side effects of the vaccine, do not qualify as “religious beliefs," under the law, and will not trigger a requirement to accommodate (though some concerns about side effects, if related to an existing disability, could trigger a requirement to accommodate the disability).
Whether an accommodation is reasonable and should be offered follows much the same analysis as the disability accommodation request described above. One additional wrinkle for religious accommodation requests is that the law allows an employer to deny a request if the burden on the employer is more than "de minimis." This means essentially employers have somewhat more leeway to deny an accommodation for a religious request than for a request associated with a disability or medical condition.
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Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as a Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, and helped thousands of clients on both the employee and employer side with issues relating to wage and hour laws, including overtime pay, late or unpaid wages or commissions, employee misclassification, and retaliation against employees asserting rights under the wage and hour laws.
Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped clients with wage and hour disputes, including employee misclassification, late or unpaid wages or commissions, retaliation under the Wage Act, and advice to both employees and employers about wage and hour law compliance.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna has helped clients assess their rights under the wage and hour laws, including employee misclassification, untimely payment of final wages, late or unpaid commissions, retaliation, and advice to small business owners about wage and hour law compliance.
Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients with wage and hour claims, including late or unpaid commissions, retaliation, employee misclassification, and overtime, and litigated these claims in state and federal courts. He also advises employers about employment policies and wage and hour compliance.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped clients with multiple wage and hour issues, including retaliation, misclassification, and late or unpaid wages or commissions, and litigated these claims in state and federal courts.
How We Can Help
Our experienced team of employment law attorneys can provide expert guidance to help you navigate employment policies regarding vaccines, workplace health and safety, and employee rights. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
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