Ohio received some good news at the end of 2020: A vaccination for the Coronavirus was soon going to be widely available. But as 2021 begins, many public and private employers are asking the same question: Can employers require employees to receive one of the COVID-19 vaccinations? The short answer is yes. But before implementing a mandatory COVID-19 vaccination policy, Ohio employers must be ready to deal with their legal obligations under federal law. In this month’s blog, we are going to discuss the legality of a mandatory vaccine policy and the situations in which employers must be ready to make exceptions to that policy.
I. Mandatory Vaccine Policy
The EEOC has long stated that employers may have a qualification standard under the ADA which requires that an employee “not pose a direct threat to the health or safety of individuals in the workplace.” A direct threat is defined as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” EEOC v. Prevo’s Family Mkt., 135 F.3d 1089, 1095 (6th Cir. 1998), citing 42 U.S.C. § 12111(3). There are four factors to consider when determining whether a direct threat exists: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. Fortunately, EEOC guidance has stated that an employee entering the workplace while carrying the virus poses a direct threat to the health of others. Though this guidance has greatly simplified the analysis, there is still more to consider.
Before an employer can enforce a mandatory COVID-19 vaccination policy, they must make a determination that an unvaccinated individual entering their workplace poses a direct threat under the standards above. In other words, employers must make an individualized assessment of their own workplace to determine whether an employee coming to work without receiving the vaccine, and thus capable of spreading COVID-19 to others, threatens the health of others in the workplace. Important questions include: How close does everyone in the office sit to one another? How often do employees come into contact with members of the public? Are employees required to touch many of the same tools/surfaces throughout the day?
It is important to remember that there are some situations where an employer will find that an unvaccinated individual will not pose a direct threat. For instance, if all employees are permanently working from home and do not come into contact with the public as part of their duties, it is unlikely that they pose a direct threat to others under the legal standard.
If, after conducting the individualized assessment of their workplace, an employer determines that an unvaccinated employee poses a direct threat to others, then federal law does not prevent the enforcement of a mandatory vaccination policy. Employers are encouraged to seek the advice of legal counsel if there are concerns regarding their specific workplace situations and whether an unvaccinated employee poses a direct threat. Employers should be aware that changes to a vaccine policy may need to be made as more information becomes available regarding both COVID-19 and the vaccine.
The decision to enforce a mandatory vaccine policy is not the end of the story, though. Vaccines, particularly the COVID-19 vaccine, tend to be hot topics today, for better or worse. This means employers are likely to hear objections from employees about receiving the vaccine. There are two specific legal issues relating to refusals for which employers need to be on the lookout; first, employees whose health may be endangered by a vaccination and second, employees with a religious objection to receiving the vaccine. If an employee notifies an employer that they cannot or should not receive a COVID-19 vaccine for one of these reasons, employers must be ready to consider an accommodation for the health condition or religious objection.
II. Accommodations For Health Conditions and Religious Beliefs
Employees with certain health conditions may be put at risk by the COVID-19 vaccination, which will likely lead to a request for an accommodation under the Americans with Disabilities Act (ADA). Employers must provide reasonable accommodations to disabled individuals who are otherwise qualified for the position. The ADA defines “disabled individual” as an individual with a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Disabled individuals are “otherwise qualified” if they can perform the essential functions of the position with or without a reasonable accommodation.
Employers should treat these requests the same way they treat any other requested accommodation by first determining if they need more information about the health condition which puts the employee at risk. This may not be necessary in every situation and employers should be aware that asking employees for details about their health conditions preventing them from receiving a vaccine is only permitted when the questions are “job-related and consistent with a business necessity.” Typically, employers can ask for sufficient documentation to determine that an employee requesting an accommodation has a disability and that an accommodation is necessary. Once sufficient documentation has been provided by the employee (e.g., a doctor’s note), the employer must begin the interactive process with the employee.
The second issue employers need to be watching for are objections to a mandatory COVID-19 vaccination policy based on sincerely held religious beliefs. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on religion. However, determining whether an employee truly has a religious objection to receiving a vaccine can be difficult. Legal precedent is clear that the purported religious beliefs justifying a request for an accommodation must be sincere. But courts have struggled to define a bright-line test to determine the sincerity of an employee’s beliefs and instead evaluate each case individually to determine whether the objection is based on sincerely held religious belief or simply a preference. Creusere v. Cincinnati, 88 F.App’x 813, 819 (6th Cir. 2003) (“A sincerely held religious belief is entitled to accommodation; whereas, a preference is not”). Courts will inquire into the employee’s religious history, length of holding said beliefs, past actions supporting or disproving the sincerity of the beliefs, etc. The employee must have support for these beliefs, such as religious requirements banning medical treatment or vaccinations, before an employer’s responsibility to accommodate the beliefs is triggered. A preference not to be vaccinated or a general distrust of these vaccines is not sufficient to exempt an employee from a mandatory vaccination policy.
Generally, employers should be careful about questioning an employee’s religious objections. If an employee requests an accommodation based on religious beliefs, employers should regard the objection as legitimate unless there are objective facts or evidence which suggests the employee does not have a sincerely held religious objection. Even then, employers should tread carefully before denying an accommodation because they do not believe the belief to be sincere.
III. Is the Accommodation Reasonable?
If an employee requests an exemption from the mandatory COVID-19 policy based on a physical or mental impairment or religious objection, employers must engage in the interactive process of determining whether a reasonable accommodation to the policy can be made. This is called the “interactive process” for a reason; employers should be flexible and open to solutions. Employees are entitled to a reasonable accommodation, not necessarily the best or preferred accommodation. Employers must also be aware that a reasonable accommodation may include exempting an employee from the policy if they are able to find a solution which reduces the direct threat posed by an unvaccinated employee in the workplace. Such risk-reducing accommodations may include modifying non-essential job functions, staggering the employee’s work schedule to avoid contact with other employees, or moving the employee to a more confined area of the office or workplace. These solutions may enable the unvaccinated employee to continue coming to work without posing a direct threat to others.
Ultimately, though, the obligation to modify the employer’s operations to accommodate an unvaccinated employee is not absolute. Requests for accommodation that constitute an undue hardship are not deemed reasonable accommodations and can be denied. 42 U.S.C. § 2000e(j); Crider v. Univ. of Tenn., 492 Fed. Appx. 609, 611-12 (6th Cir. 2012).
If the employer has determined that the direct threat cannot be reduced by modifications or adjustments to the employee’s working situation, then the EEOC states that the individual can be excluded from the workplace. They may not, however, be summarily terminated. If the employer cannot accommodate the unvaccinated individual within the workplace, the employer must continue to work towards an accommodation, which may include remote work for the duration of the pandemic. If an accommodation cannot ultimately be provided without causing undue hardship, then termination may be appropriate. Employers are encouraged to contact legal counsel before terminating an employee under a mandatory vaccine policy.
Overall, employers need to carefully consider whether a mandatory vaccine policy is right for them, not just whether the policy is legally enforceable. This will require consideration of the workplace culture, workflow, and safety of their employees. In addition, the issue of mandatory vaccinations will implicate collective bargaining requirements for those employers with unions. Employers contemplating policies concerning COVID-19 vaccinations should consult with legal counsel.
The attorneys at Fishel Downey regularly advise employers on compliance with federal and state laws in the unique circumstances presented by the COVID-19 pandemic and will continue to offer up-to-date guidance. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.