Written by Edward Hutschenreuter
On May 13, 2021, the Center for Disease Control and Prevention (“CDC”) began paving the way for fully vaccinated Americans to resume normal activities without mask or physically distancing requirements. Vaccinated Americans no longer need to get tested for COVID-19 before or after traveling within the United States, nor do they need to self-quarantine after travel. CDC guidelines consider a person to be fully vaccinated two weeks after their second dose in a 2-dose series, such as Pfizer or Moderna vaccines, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. Mask mandates have been in effect in most states since July of 2020, and the CDC has been recommending their use since as early as February of last year. The new guidelines are a monumental step into the re-normalization of individual’s daily life’s which they knew before the pandemic and show a clear desire to incentivize individuals into obtaining the one form of the vaccine.
In light of the reported positive news surrounding COVID-19 vaccinations a growing number of businesses have begun announcing new employment requirements which mandate vaccines for current employees or future ones. In a recent study conducted by Rockefeller Foundation and Arizona State University’s College of Health Solutions, 88% of the 1339 employers surveyed planned to either require or encourage employees to be vaccinated while 60% of the employers stated they will require proof of vaccination from employees. Alongside the new employee vaccination requirements, reports of employees who were allegedly terminated for not being vaccinated have also begun to surface. The question that arises from these mandatory vaccination policies and terminations is whether they are legal for employers to enact?
The Equal Employment Opportunity Commission (EEOC), which enforces anti-discrimination laws within the workplace has weighed in on the issue stating that employers may encourage or require the COVID-19 vaccinations so long as their policies comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). Under the ADA, employers are allowed to have a qualification standard which includes requirements “that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, the ADA affords disabled employees the right to ask for a reasonable accommodation which would allow them to not comply with a new vaccination policy. If an employee is able to provide documentation indicating that they shouldn’t take the vaccine, the employer must accommodate the employee or show that the unvaccinated employee would pose a direct threat to the health or safety of other individuals which cannot be eliminated or reduced by the reasonable accommodation. Employers who are unable to show that the reasonable accommodation isn’t a direct threat or undue hardship would be violating the ADA’s anti-discrimination policies if they terminated the employee on behalf of their vaccination status.
Title VII works similarly to the ADA in the protection of employees by providing for reasonable accommodations when an employee is able to establish that their sincerely held religious beliefs or practices prohibit them from taking the vaccine. Reasonable accommodations are granted unless they would cause an undue hardship upon the business. The standard for undue hardship under Title VII is lesser than that of the ADA’s and was described by the Supreme Court as more than a “de minimis” cost or burden upon the employer. The EEOC’s guidance provides that that because of Title VII’s broad and expansive wording, employers should assume that reasonable accommodations requests are based on a sincere religious belief. Employers can, however, request additional supporting information from the employee if there was an objective reason to do so. If an employee were not able to get vaccinated for COVID-19 because of their sincerely held religious belief, they would likely be protected from termination based upon their non-vaccination status, so long as the accommodation did not cause undue hardship upon the business. While what constitutes undue hardship differs under both statutes, courts often look to factors such as disruptions in business operations, overworking of other employees, excess costs to companies, and inability to protect other employees or customers.
In most of the current circumstances, business have already been providing what would likely be approved as a reasonable accommodation under both the ADA and Title VII and what would also not be considered an undue hardship. For the past year, business have enacted safety procedures including mandatory masks, social distancing and remote working to limit the spread of COVID-19 and continue their normal business operations. While in some professions these procedures may not be available or even possible, courts would definitely consider the past application of the practices in companies in determining whether an undue hardship is present.
Nonetheless, it appears that under current federal guidelines and laws, mandatory vaccinations policies by business would be upheld so long as they are not violating provisions of the ADA of Title VII. However, in reaction to this many states have begun considering and proposing legislation which limits or completely prohibits mandatory vaccination policies. While the legislation varies, it is important for businesses to continuously monitor their state’s vaccination legislation to determine whether their policies are in accordance with the new laws.
Remy Tumin, Roni Rabin, Apporva Mandavilli, Noah Weiland, Covid 19: C.D.C. Guidance Prompts Caution in Some States, The New York Times, (May 14, 2021), https://www.nytimes.com/live/2021/05/13/world/covid-vaccine-coronavirus-cases.
Berkeley Lovelace Jr., CDC says fully vaccinated people don’t need to wear face masks indoors or outdoors in most settings, CNBC, (May 13, 2021, 1:38 PM), https://www.cnbc.com/2021/05/13/cdc-says-fully-vaccinated-people-dont-need-to-wear-face-masks-indoors-or-outdoors-in-most-settings.html.
Center for Disease Control and Prevention, (May 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.
Center for Disease Control and Prevention, (March 25, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html.
Catherine Thorbecke, Employers announce COVID-19 vaccine requirements as workplaces reopen, ABCNews, (May 17, 2021, 6:51 PM), https://abcnews.go.com/Business/employers-announce-covid-19-vaccine-requirements-workplaces-reopen/story?id=77688270
Husch Blackwell, 50 State Update on Pending Legislation Pertaining to empoyer-mandated Vaccinations, (March 5, 2021), https://www.huschblackwell.com/newsandinsights/50-state-update-on-pending-legislation-pertaining-to-employer-mandated-vaccinations.
U.S. Equal Employment Opportunity Commission, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Haynsworth Sinker Boyd, Employers Are Legally Permitted to Mandate COVID-19 Vaccinations, But Should They?, JDSUPRA, (April 26, 2021), https://www.jdsupra.com/legalnews/employers-are-legally-permitted-to-4533400/.
Allen Smith, Lisa Nagele-Piazza, Employers React to Workers Who Refuse a COVID-19 Vaccination, SHRM, (April 26, 2021), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/if-workers-refuse-a-covid-19-vaccination.aspx.
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977).
42 U.S.C.A § 12112 (1990).
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