As distribution and administration of COVID-19 vaccines begin in earnest, many Americans say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease.
Many of those who don’t want to be vaccinated will soon find that their employer feels differently. Those employers may also tell them that they either need to get the vaccine or find a new job. And, according to just-released guidance from the Equal Employment Opportunity Commission (EEOC), employers will be well within their rights to fire employees who refuse to receive the COVID-19 vaccine in most cases.
However, while employers can generally require employees to get the vaccine, there are exceptions under the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act for those with a legitimate religious objection to vaccination.
Employers Can Exclude Unvaccinated Employees From the Workplace if They Are a “Direct Threat” to Other Employees
The EEOC does not explicitly say that mandatory vaccination is lawful in its guidance, but it does not need to. Since most Michigan employees work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers.
As the EEOC points out, an employer can make it a condition of employment that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This can include mandating vaccinations.
However, if a vaccination requirement screens out or tends to screen out an individual with a disability (such as a compromised immune system or an allergy to an ingredient in the vaccine), the employer must show that the unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” such as telecommuting or a leave of absence.
To determine whether an unvaccinated employee represents a “direct threat,” the EEOC advises employers to conduct an “individualized assessment” of the following four factors:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- The imminence of the potential harm.
“Reasonable Accommodation” Still Required
“A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite,” the EEOC says. In such cases, the employer can exclude the unvaccinated employee from the workplace.
However, even where a direct threat exists, an employer’s obligation to make a “reasonable accommodation” for the employee remains. An employer cannot exclude an employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”
The anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine.
As employers must do with individuals whose disability prevents them from being vaccinated, they also must make accommodations for those with a religious objection unless doing so would cause “undue hardship.” For purposes of Title VII, “undue hardship” is a much easier standard for an employer to meet than it is under the ADA. All that the employer needs to show is that the accommodation imposes “more than a de minimis cost or burden” for it to be “undue.”
Other Issues to Consider
Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, an employee who experiences an adverse reaction may file a worker’s compensation claim or seek legal action (whether meritorious or not), even if they signed a waiver upon receiving the shot. A vaccination requirement may also receive a general adverse reaction from employees and the general public if it seems heavy-handed and overreaching. Of course, as most employers know by now, those who decide against a mandate face different issues if someone does contract the coronavirus in the workplace.
Call Kreis Enderle With Questions About COVID-19 Safety Requirements
If you have questions regarding mandatory COVID-19 vaccinations in the workplace or any other aspects of how the pandemic impacts you, please contact the Business Law and Employment Law Practice Groups at Kreis Enderle today.