As the first COVID-19 vaccines roll out, employers in various industries may be considering mandatory vaccines for their employees. Are these permissible under the law? The answer is likely “yes” but as with most legal questions, it requires much more discussion and analysis.
One of the most recent federal cases addressing mandatory vaccines is Hustvet v. Allina Health Systems, 910 F3d 399, 408 (8th Cir., 2018). The court held that an employer had the right to terminate a healthcare worker after she refused to be immunized for rubella due to alleged sensitivities and allergies. The court first determined that the decision to force a class of employees to determine immunity to rubella was consistent with a business necessity and related to essential, job-related abilities. The court further determined that there was insufficient evidence to conclude that the plaintiff’s alleged conditions constituted disabilities under the Americans with Disabilities Act. The takeaway from this case is that an employer may, under certain circumstances, require vaccinations but may be subject to compliance with the ADA if an employee could prove a disability preventing her from being vaccinated.
Also, in March 2020, the EEOC issued the informational bulletin, Pandemic Preparedness In the Workplace. The bulletin addressed whether an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 could compel its employees to take an influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic. The EEOC’s answer was “No”. It stated that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking a vaccine. Further, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. The EEOC suggested that employers should consider simply encouraging employees to get a vaccine rather than requiring them to take it.
An employer considering mandatory vaccinations should:
- Determine whether the mandate is consistent with a business necessity and related to essential, job-related abilities;
- Obtain all relevant information from any employee who objects to the mandate;
- Consider reasonable accommodations to the objection if legitimate reasons are presented;
- Uniformly enforce the vaccination policy mandate;
- Determine whether the mandate complies with existing employment handbook policies and whether revisions to the handbook should be considered;
- Consult with counsel to address implementation and communication to employees of any mandatory vaccine.