As labs in the U.S. and around the world work to develop a COVID-19 vaccine, discussions have begun to emerge about how the vaccine will be rolled out. A safe and effective vaccine could allow more workers to return to the physical workplace and, eventually, end the coronavirus pandemic.
But for a vaccine to succeed, enough people would have to get inoculated. One step on the road to achieving COVID-19 immunity would be for employers to require COVID-19 vaccinations as a condition of employment.
Because a COVID-19 vaccine has not yet been developed, there are no state or federal laws specifically addressing COVID-19 vaccinations. Existing laws and court cases addressing other types of vaccines give some indication of how courts might treat a COVID-19 vaccine.
While there are currently no laws requiring COVID-19 vaccinations, there are many state laws requiring other types of vaccinations in certain circumstances to further public safety. For example, many states require hospital employees to be immunized against diseases like the flu in order to protect patients and reduce outbreaks.
As the U.S. get closer to approving a COVID-19 vaccine, states might begin to consider legislation requiring COVID-19 vaccinations for certain types of employees. Because most mandatory employee immunization laws currently apply to health care workers, it is likely that any future laws regarding COVID-19 vaccinations will also apply to health care workers. Due to the scope of the coronavirus pandemic, these laws could be expanded to include other workers as well, particularly those who are at higher risk of transmitting or contracting the coronavirus.
In the absence of state laws mandating employee vaccinations, it is up to the employer to decide whether to require them.
Most workers in the U.S. are “at will” employees. This means they can be fired for any reason, at any time, as long as the reason for firing is not illegal (such as race or gender discrimination or retaliation for filing a discrimination complaint).
As a result, employers can generally require vaccination as a term and condition of employment, as long as they consider requests for religious accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) and for medical accommodation under the Americans with Disabilities Act (ADA).
Many employers choose not to require immunizations, however, opting instead to encourage their employees to get vaccines. This may change with the approval of a COVID-19 vaccine.
Title VII of the Civil Rights Act requires employers to reasonably accommodate employees’ sincerely held religious beliefs, unless doing so would cause an “undue hardship.” Under Title VII, an employee objecting to mandatory vaccination much first establish a “sincerely held religious belief.”
Some courts interpret “religious belief” more broadly than others. For example, one court has found it plausible that a belief in veganism could be a type of religious belief. Typically, personal or ethical objections to vaccines are insufficient to establish a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy.
Even if an employee can establish a sincerely held religious belief, the employer may deny an accommodation request if it poses an “undue hardship.” In determining undue hardship, courts consider:
Employers are not required to grant religious accommodation requests that result in more than a minimal cost to the operation of the employer’s business. Under this standard, it seems unlikely that federal law would require employers to accommodate employees requesting a religious exemption to a COVID-19 vaccine.
The ADA prohibits discrimination on the basis of an employee’s disability. An employee requesting a vaccine exemption under the ADA must first establish a covered disability. Courts disagree about whether sensitivity to vaccines constitutes a covered disability. For example, a federal court in one jurisdiction has found that a history of allergies related to possible vaccine side effects qualifies as a disability under the ADA, while a court in another jurisdiction has concluded that there is no statutory disability where an employee’s claimed medical condition amounts to “garden variety allergies.”
Assuming an employee requesting an accommodation is covered by the ADA, the employer may deny the request only if the accommodation would constitute undue hardship. The test for undue hardship is stricter under the ADA than it is under Title VII, as the ADA defines undue hardship as significant difficulty or expense incurred by the employer in providing an accommodation.
The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing laws that prohibit discrimination in the workplace, has issued guidance on pandemic preparedness that includes a section on vaccinations. The EEOC document was originally published in 2009, in response to the spread of the H1N1 flu virus, and was updated in March 2020 in light of the COVID-19 pandemic.
With respect to the flu vaccine, the document incorporates federal law providing that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability or a sincerely held religious belief that prevents the employee from taking the vaccine. The EEOC also notes that as of March 2020, there was no vaccine available for COVID-19, which implies that the agency’s guidance regarding vaccines might be updated again once a COVID-19 vaccine becomes available.
Besides its guidance on vaccines, the EEOC document also acknowledges that the COVID-19 pandemic meets the ADA’s “direct threat” standard. This means that having someone with COVID-19 or symptoms of it in the workplace poses a “significant risk of substantial harm.” A direct threat finding permits more extensive medical inquiries and controls—such as taking employee temperatures—than the ADA previously allowed in the workplace. Courts or employers may take the position that the direct threat finding supports mandatory employee vaccinations.
In sum, while there are federal exceptions to an employer’s ability to require employee vaccinations, these exemptions require more than a generalized belief that vaccines may be harmful. Much remains uncertain regarding COVID-19 vaccines, but existing law provides a framework for how courts, legislatures, and employers will approach mandatory vaccinations for employees.