Employer Vaccine Requirements
As employers struggle with how to maintain operations and keep their staff and customers safe during the current Omicron surge, questions frequently arise about whether they can require their employees to show proof of vaccination as a condition of employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
Can you require proof of vaccination? In most cases, the answer is yes, so long as you are applying your policy in an even-handed, non discriminatory fashion. There are limited exceptions for employees with a medical condition or disability that prevents administration of the vaccine on medical advice, and for employees with a sincerely held religious belief that the vaccine would violate.
Importantly, neither of these are a true "exemption" from a vaccine requirement. Instead, employers are required in those situations only to make "reasonable accommodations" for the employee. This may mean that an employee who does not want to get vaccinated can work remotely, or test frequently, for example. But if those accommodations are not reasonable for the business- for example, if the work must be done in person- the employer may not be required to make the accommodation, and may terminate the individual's employment.
Vaccine Requirements: The General RuleBefore, during and after the pandemic, private employers have broad leeway to set conditions of employment. These can include schedules, required physical abilities, and vaccines. In some settings vaccines have been required because of the nature of the job- for example, health care workers and teachers. In others during the pandemic they have become newly required as employers seek to address the safety of their employees and customers in an in-person environment.
The limitations on this leeway come from anti-discrimination laws. An employer's right to set physical requirements for a job cannot exclude someone with a disability if that person could perform the essential job functions with a reasonable accommodation. A person with a prosthetic arm who is able to drive a bus safely with his prosthetic should not be kept from the job because of a requirement that certain tasks be done with two hands. Other disabilities, such as sight impairment, could completely prevent a person from doing the job, in which case there would be no accommodation the employer could make. A similar analysis applies where an employee believes a job requirement interferes with his or her practice of a religious belief. Requesting a Disability AccommodationFor the most part, public health officials recommend that everyone, including people with disabilities,receive one of the available COVID vaccines. There are certain conditions, however, such as allergies or other chronic conditions that a health care provider may see as increasing the risk of the vaccine.
It is important to know the rights and responsibilities of both the employer and the employee in this situation. The employee must ask for an accommodation. There are no magic words to this, so long as the employee is clearly communicating that he or she has a medical condition and needs a different way to address workplace COVID safety without receiving the vaccine. The employee should be prepared to share enough information from the 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:
|
Need Legal Help?
|
|
The employer, in turn, must engage in an interactive dialogue with the employee about available accommodations.
|
Requesting a Religious Accommodation
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 request for a religious accommodation does not require any "magic words," or the specific invocation of the applicable law. The employee will, however, 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:
As with a request for a disability accommodation, the request for a religious accommodation does not require any "magic words," or the specific invocation of the applicable law. The employee will, however, 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).
What is a Reasonable Accommodation?
In some situations, a reasonable accommodation could be fully remote work, or a regular regimen of COVID testing before appearing at the worksite. 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.
Whether a testing regimen is a reasonable alternative to vaccination will also be a fact specific question. Testing does not pick up the infection at all moments in which it might be transmitted. An employer with many people working in close proximity, or whose employees regularly interact with medically vulnerable people, might conclude that the testing is not sufficient to maintain safety.
It is also important to know that courts have interpreted the "reasonableness" of an accommodation a little differently for religious accommodations, and have found that employers can claim an undue hardship from a requested accommodation if the burden on the employer is more than "de minimis."
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.
Whether a testing regimen is a reasonable alternative to vaccination will also be a fact specific question. Testing does not pick up the infection at all moments in which it might be transmitted. An employer with many people working in close proximity, or whose employees regularly interact with medically vulnerable people, might conclude that the testing is not sufficient to maintain safety.
It is also important to know that courts have interpreted the "reasonableness" of an accommodation a little differently for religious accommodations, and have found that employers can claim an undue hardship from a requested accommodation if the burden on the employer is more than "de minimis."
How Can We Help?
We can help you assess your workplace safety measures for legal compliance, and advise on any requests you may receive from employees for exemptions to a vaccine requirement. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
