Editor’s note: The Equal Employment Opportunity Commission, the federal agency charged with enforcing laws that prohibit discrimination in the workplace, on December 16 said that employers can require employees to be vaccinated before entering the workplace . Now that two COVID-19 vaccines have been authorized for emergency use in the United States, some people are concerned that they might be fired if they don’t want to get the vaccine. We asked lawyer Ana Santos Rutschman, who teaches a course in vaccine legislation at Saint Louis University, to explain the decision and the rights that employees and employers have.
1. Can employers require employees to be vaccinated?
The general rule is yes – with a few exceptions.
Under US law, private employers have the ability to define general working conditions, including the adoption of health and safety measures in the workplace. Requiring employees to be vaccinated against diseases that can compromise health and safety in the workplace is seen as part of that capacity.
2. Does the rule apply to COVID-19 vaccines?
At the beginning of the pandemic, there were some doubts about whether the general rule would apply to COVID-19 vaccines because the first vaccines that became available in the United States were not fully approved by the Food and Drug Administration. They have received an emergency use permit, which is a temporary permit to market vaccines due to the public health crisis the United States is facing. This is the first time that an emergency use authorization has been granted for a new vaccine. For this reason, some legal experts questioned whether existing laws applied to temporarily authorized vaccines.
This issue was addressed when the Equal Employment Opportunities Commission issued guidelines under which employers are entitled to impose a mandatory COVID-19 vaccination policy.
From a legal point of view, this view is based on the fact that the law allows employers to impose requirements to ensure that employees do not pose threats to “the health or safety of other individuals in the workplace.” The EEOC treated emergency use vaccines as part of a set of measures that employers can determine to meet this goal.
Therefore, the general rule applies and employers must be able to require employees to be vaccinated against COVID-19, within certain limits. These limits – including the exceptions below – are the same as the general exemptions applicable to any vaccination required by the employer.
3. Are there religious exemptions?
Title VII of the Civil Rights Act established that if an employee has a religious belief that is sincerely incompatible with vaccination, the employer cannot demand that that employee be vaccinated. The EEOC has traditionally interpreted the concept of “religious belief” very broadly. Refusal of the vaccine cannot, however, be a personal or politically motivated belief.
If an employee qualifies for a religious exemption, the employer must then try to accommodate him or her reasonably. An example of accommodation would be for the employer to make the employee switch from face-to-face to remote work, while COVID-19 poses risks to public health.
However, the employer does not have to grant accommodation if it results in “undue hardship”. Typical cases of undue hardship include situations where accommodation would compromise the health and safety of other employees or where the implementation of accommodation is very costly or logistically expensive. In the event of a dispute over what constitutes an undue difficulty for the employer, a court would normally be asked to resolve it based on the cost of offering the accommodation, as well as on the employer’s difficulty in implementing this.
4. What about disability-related exemptions?
The balance of rights between a disabled employee and her employer is similar to that described above. Under the Americans with Disabilities Act, if an employee has a disability and cannot safely receive a vaccine, that employee qualifies for an exemption and the employer must provide reasonable accommodation. But the law also states that employers are not required to provide accommodation that results in undue hardship.
The technical question here was whether employers could impose the COVID-19 vaccination because the Americans with Disabilities Act severely limits employers’ ability to require medical examinations. In its December 16 guidance, the EEOC clearly stated that the COVID-19 vaccines do not fall under the “medical examination” category.
Therefore, requiring employee vaccination does not violate federal disability law.
5. What if the employer is unable to provide accommodation?
If an employee qualifies for a religious or disability-related exemption, but the employer is unable to provide accommodation due to undue difficulties, the employer has the right to exclude the employee from going to the workplace.
Given the broad set of rights the law gives employers to promote health and safety, in some cases it is possible for an organization to go even further and terminate employment if a worker refuses vaccination and there is no reasonable way to provide a accommodation. For example, if there is no reasonable accommodation that an employer can provide a barista that allows him to continue making lattes at the café where he works, the employer can terminate his employment contract.
However, the EEOC guidelines explicitly state that the failure to reasonably accommodate an employee does not automatically give the employer the right to fire him. Finding out if the cafeteria could in fact shut down its unvaccinated barista would depend on a variety of factors, including state legislation, union agreements and any other requirements potentially applicable at the federal level.
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Ana Santos Rutschman, Assistant Professor of Law, Saint Louis University
This article was republished from The Conversation under a Creative Commons license. Read the original article.