Employers Can Require That Employees Receive The COVID-19 Vaccine

There’s been much confusion over employers’ ability to mandate COVID vaccination for employees. The most common argument we hear from employees references their rights to determine what goes into their bodies and their rights to work. Employers’ most frequent response is their obligation to create a safe environment for their employees, customers, and visitors. Let’s discuss this legal dilemma.

First, a few caveats. This article doesn’t apply to federal employees. Special equal employment laws apply to federal employees. Also, state or local laws may provide employees with greater employment rights than federal law. This article’s limited to the Equal Employment Opportunity Commission’s enforcement of the federal civil rights laws that apply to private employees.

Federal civil rights laws do not prevent an employer from requiring that all employees be vaccinated for COVID-19. There are only two exceptions to that — An employee’s disability that prevents vaccination or an employee’s sincerely held religious beliefs about vaccines.

In some instances, Title VII and the ADA may mandate that an employer provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not want to receive the COVID-19 vaccine, unless allowing that exception would pose an undue hardship on the employer’s business operations. If there’s no undue hardship for the employer, employees who do not get vaccinated because of a disability or a sincerely held religious belief, practice, or observance may be entitled to a reasonable accommodation. Examples of reasonable accommodations include mask wearing, social distancing, modified shifts, reassignments, telework, or regular COVID-19 testing.

Employees who chose not to be vaccinated for disability or religious reasons, and who refuse a reasonable accommodation offered by the employer, can in most situations be legally fired. An area of potentially significant upcoming civil rights litigation will be the reverse — Employers who claim that an undue hardship prevents any accommodation for an employee declining to be vaccinated and terminate the employee instead over the vaccine refusal. That’ll very much be a case-by-case issue that’ll depend on innumerable factors that can change from one employer to the next, just like any other failure-to-accommodate claim.

Like any other reasonable accommodation, employees receiving an exemption from workplace vaccination requirements for disability or religious reasons must be flexible regarding the employer’s proposed accommodation. The ADA envisions a flexible, interactive process through which the employer and the employee try to arrive at a reasonable accommodation. For employers who require vaccination but consider reasonable accommodations those who decline vaccinations on disability or religious grounds, employees at such places should have no expectation that they’ll be able to avoid the vaccine mandate while continuing to perform their job as normal in all respects.

Finally, workplace COVID vaccine rules and requirements are governed by all the other civil rights laws that generally apply to employers. Such rules cannot be applied in a manner that discriminates against employees on the basis of race, nationality, sex, gender, religion, disability, age, or sexual orientation. Nor can such rules have an adverse impact on such groups.