Employers may implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions.  However, mandatory vaccination policies must be job-related; consistent with business necessity; or justified by a direct threat to health. The Equal Employment Opportunity Commission (EEOC) has deemed COVID-19 to be a ‘direct threat’ to health in the workplace. In December 2020, the EEOC published guidance on this subject which is available on its website at www.eeoc.gov.

In addition, if there isn’t a supply available to the group, employers can’t require it.  Moreover, an employer would not be able to compel employees to take a vaccine that was not FDA approved (on at least an emergency basis.)  Also, keep in mind that any mandatory COVID-19 vaccination policy must comply with federal and state employment laws.

What are the exceptions that an employer should make to their mandatory vaccination policy?

Two federal employment laws require employers to make exceptions to a mandatory vaccination policy. Specifically, these are the Americans with Disabilities Act (ADA), which protects employees with disabilities, and Title VII of the Civil Rights Act of 1964 which protects employees with sincerely held religious beliefs. These laws apply to employers of 15 or more employees.  Delaware has its own versions of these laws that protect the same protected classes; these laws cover employers of 4 or more employees (owner/operators are included in this count.)

These laws require employers to make reasonable accommodations for employees who cannot take the vaccine due to bona fide religious beliefs or their disabilities. Employer and employee will have to communicate to make this determination on a case-by-case basis.  Employers can generally require employees making requests for an exception to the policy to provide supporting documentation to verify the basis for the request and help to determine whether a reasonable accommodation is available. In the case of a disability, medical records may be requested.

Whether to grant an exemption accommodation is subject to two different legal standards:

• The ADA excuses employers from accommodating employees with disabilities only if any accommodation would pose a significant difficulty or expense; but
• Under Title VII, employers need only show that any accommodation to a person based upon a bona fide religious belief would pose more than a minimal cost or burden.

In either case, the analysis of whether to provide an accommodation is employer and employee-specific, requiring employers to consider factors such as:

• whether the employee has a disability as defined by the ADA;
• the employee’s job and how this might affect the employer’s options on accommodation (e.g., can the job be feasibly performed remotely or by a person who has minimal contact with others?); and
• whether the exemption would pose increased safety risks for the employee or others.

 Should employers create mandatory or voluntary vaccination policies?

There are a number of factors that employers should consider when determining whether to make a COVID-19 vaccine mandatory or voluntary, including:

• the administrative burden;
• legal exposure;
• employee morale; and
• public relations issues.

Mandating a COVID-19 vaccine may provide some protection for employers, including to the extent that this will increase employee participation and ultimately create a safer, healthier workforce. Moreover, those businesses mandating vaccination may see PR benefits, providing customers, employees and recruiting candidates with an increased sense of safety and confidence.

If a vaccine is mandatory, employers should carefully consider the following:

• There is also an increased administrative burden to ensure that compliance is tracked (proof of vaccination and if necessary, proof of obtaining the second dose).
• Refusing to make an exception as discussed above creates potential exposure to claims for failure to accommodate under the ADA or based upon religious beliefs. Ultimately, the denial may be legally justified; but those discrimination charges and lawsuits are likely to follow if termination is the result of failure to accommodate. These lawsuits may be more difficult to defeat on summary judgment because this is a groundbreaking factual situation and because no court has ever decided such a case in the COVID context.  The recently published EEOC guidance ultimately leaves the decision-making burden and legal risk on employers.
• Because whether to make an exception is decided on a case-by-case basis, this leaves employers open to arguments that they have provided exceptions or accommodations on a discriminatory basis. This may also harm morale. For example, a claim could be that all exceptions were made for women and not for men. Employers mandating a vaccine must work with their HR and legal teams in unison to provide as uniform a response as possible in similar situations.

Taking adverse action, such as termination, change of shifts or hours, transfers, or demotions, against an employee who refuses a COVID-19 vaccine can likewise generate potential exposure to wrongful termination claims.  (Note, however, that even if vaccines are merely strongly encouraged if an employee refuses to be vaccinated based upon religious belief or disability, employers should take care not to appear punitive if they assign those employees in a way to minimize COVID exposure, such as assigning them to times when the business is slow. Again, this might be considered an adverse employment action).

Accordingly, business owners should consider whether it is necessary to mandate the vaccine, even if they are legally entitled to do so. Employees should continue to wear masks and follow all other COVID-related workplace safety rules – regardless of vaccination – for the foreseeable future, in any case, say the experts until we achieve “herd immunity” in our area.