Legal Matters: The vaccination is here: As a business owner, should I require staff to take it?

Officials with the Utah Department of Health have ordered the first batch of COVID-19 vaccines for the state and expect to roll out the first round of vaccinations — which will require two doses — around Dec. 15. According to officials, the vaccine will be rolled out in three phases and they are currently assessing who should receive the vaccine after healthcare workers and assisted living staff and residents. As things stand currently, sufficient supplies of the vaccine may arrive so that vaccinations are open to the general public as early as May or July 2021.

In Utah, there is no plan for a statewide COVID-19 vaccine mandate. However, in anticipation of the vaccination’s arrival, employers have begun considering what this means for their workforce and whether they will require employees to get the vaccination when it is ready. But, can an employer require mandatory employee vaccinations as a condition of employment? The short answer is “perhaps,” but with exceptions, and even then employers may want to consider the impact a mandate may have on their workforce. Utah is an at-will state, which means private employers can set health and safety work conditions. An employer could require employees to be vaccinated or face termination for their refusal to do so. However, employees who have a disability or underlying medical condition, or who object on sincerely held religious belief, may fall under statutory exceptions.

Under the Americans with Disabilities Act (ADA), vaccinations and health screenings are “medical examinations.” Therefore, the vaccination must be job-related, consistent with business necessity or justified by a direct threat, no broader or more intrusive than necessary, for the vaccination to be lawful under the ADA. This is why some jobs, such as healthcare providers, schools, nursing homes and employers that work with high risk populations, can customarily require mandatory vaccinations.

In March 2020, the Equal Employment Opportunity Commission (EEOC) declared COVID-19 a pandemic and a direct threat. As a result, the EEOC carved out some early exceptions under the ADA, including allowing an employer to ask employees about medical symptoms or requiring workplace temperature testing. Thus far, the EEOC has yet to issue specific guidance on COVID-19 vaccinations. In 2009, in response to the H1N1 flu pandemic, the EEOC issued guidance stressing that an employer considering a mandatory vaccination policy must comply with the ADA and Title VII. The EEOC will likely issue the same guidance in response to mandatory COVID-19 vaccinations. Thus, an employee may be entitled to an exemption from the mandatory vaccine requirement based on an ADA disability that prevents the employee from taking the vaccination or sincerely held religious beliefs.

To comply with the ADA, if an employee claims to have a disability and refuses the COVID-19 vaccination, an employer must engage in the “reasonable accommodation” interactive process with the employee. Through this process the employer must offer an accommodation unless doing so would place an “undue hardship” on the employer or the employee poses a “direct threat” to the health and safety of others, such as working with vulnerable populations, but even this exception for high-risk settings is not a guarantee. Exempting the employee from the employer’s mandatory vaccination requirement may be a reasonable accommodation, of course, depending upon the circumstances of the job, business necessity and or direct threat to the health and safety of others. Other reasonable accommodations may include allowing an employee refusing the vaccination to work remotely, requiring protective personal equipment, such as a mask in the workplace, or adjusting the employee’s duties to minimize risk of transmission. Currently, under guidance issued by the EEOC in March 2020, before release of the vaccine, the EEOC recommended that ADA-covered employers (that is, employers with 15 or more employees) should consider simply encouraging employees to get the vaccine rather than requiring them to take it.

Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice or observance prevents them from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Aside from ADA and Title VII religious belief issues, employers must carefully weigh liability issues potentially associated with a mandatory vaccination requirement. Employer liability could arise if the vaccine goes sideways and creates harm to the employee. That may give rise to a workers’ compensation claim against the employer. An employer cannot require an employee to waive workers’ compensation claims, so a release of liability will not provide the employer any defense.

Finally, employers should consider the effect a mandatory vaccination requirement would have on its employee relations. A Gallup Poll published in August 2020 shows that if the FDA approved a free COVID-19 vaccine, at least 35 percent of respondents stated they would not receive the vaccine. This may be for myriad reasons, but employers are wise to understand who their workers are and how they are likely to respond to an employer-directed mandate. Some employees may decide to leave their employment if mandatory vaccination is required, or if they do reluctantly decide to receive the vaccine, this may generate distrust between the employer and employee.

Although the EEOC has not weighed in on the issue since March, employers should consider encouraging COVID-19 vaccination as opposed to requiring the vaccination, unless there is a bona fide job-related reason consistent with business necessity for mandatory vaccinations in the workplace.

Kathleen Weron is an employment law attorney with Manning Curtis Bradshaw & Bednar PLLC, where her practice focuses on management employment law counseling and employment litigation defense. She graduated from the University of Utah’s S.J. Quinney College of Law.