Whether you are an employer wondering whether you can mandate that your employees receive a COVID-19 shot or you are an employee wondering if you have to take it, mandatory employee vaccines are a big topic. Workplaces are grappling with the realities of doing business in a time rocked by a pandemic. Employees are unsure of how this will change their lives.
Most states are “at will” states, which means the employee-employer relationship is contingent upon the mutual, voluntary desire of the employee and the employer to keep it alive. This gives each party considerable freedom to ask conditions of the other. If the other does not like it, in theory, they are free to walk away.
In the case of mandatory employee vaccines, this means that an employer may require its employees to get vaccinated as a condition of employment unless state or federal law forbids it.
Maryland law does not forbid employers from imposing mandatory vaccination policies. Maryland has its own anti-discrimination statute that has the same protections as federal law. However, federal law protects members of certain groups by allowing them to request accommodation.
What Accommodations to Employer-mandated Vaccination Are Available to Employees Under Federal Law?
Several federal laws protect employees from discrimination. Firing someone for not doing something they fear will hurt them based on their physical condition or because they refuse to violate the tenants of their faith violates anti-discrimination laws.
Title VII of the Civil Rights Act of 1964 (“the CRA”) prohibits discrimination based on race, color, religion, sex, and national origin. The text of the statute defines religion as “all aspects of religious observance and practice, as well as belief.”
Title I of the Americans with Disability Act (“the ADA”) prohibits private employers, as well as state and local governments, from discriminating against job seekers and workers on the basis of disability. Title I applies to employers with 15 or more employees. It also applies to federal employers under Section 501 of the Rehabilitation Act.
Covered employers must provide reasonable accommodations to employees covered by the CRA and the ADA unless the employer shows that providing accommodation would impose an undue hardship on their business. Undue hardship means the cost to the employer of providing the accommodation.
How Do These Laws Apply Specifically to Employee Mandatory Vaccines?
Turning now to vaccines specifically, the biggest reasons employees seek an accommodation exempting them from employee mandatory vaccines are disability or sincerely held religious beliefs.
A reasonable accommodation based on a disability typically involves an employee with a pre-existing medical condition that might be adversely affected by receiving a vaccine. Because employees must submit medical documentation to their employer to evidence their disability, an employer must be careful to protect an employee’s private health information.
Although the ADA does not classify pregnancy as a disability, pregnancy does change a woman’s body, possibly leading to some impairments. For this reason, pregnant women may also seek accommodation to avoid taking an employee mandatory vaccine.
A reasonable accommodation based on a sincerely held religious belief or practice typically involves an employee whose faith opposes their body receiving the injection of a foreign substance. It may be risky for an employer to probe into the employee’s faith practice. However, if an employer has an objective reason for doubting an employee’s profession of faith, it may ask for supporting documentation. Any inquiries should be delicate. An employer is wise to exercise caution here and respect the beliefs of its employees. This is because religion is broadly defined in the CRA. Often religion is a matter of personal conviction and characterized by adherence to moral tenants. Whether someone belongs to an organization or is in touch with a leader of a faith-based community does not determine whether their faith is sincere. Thus, it is safest for an employer to take an employee at their word unless they have grounds for disbelief.
Employees should know that political views or non-faith-based preferences are not covered by religious accommodation. To provide guidance to employers, the EEOC has shared a copy of its own Religious Accommodation Form on its website.
What Are the Limits to Federal Protection Against Employer-mandated Vaccinations?
In the case of an employee seeking a religious accommodation under the CRA to avoid taking an employer-mandated vaccination, an employer must accommodate them unless doing so would pose an undue hardship on the employer’s business.
Typically, an undue hardship under the CRA is an expense that poses more than a minimal cost to the employer. In the case of mandatory employee vaccines, factors specific to the employer’s business environment are relevant to determining how minimal the cost of accommodation is.
For example, if an employee is constantly interacting with customers, it might be harder for an employer to accommodate them. However, if an employee’s job functions can be performed through telework, this might show they can be accommodated.
Undue hardship for disability under the ADA means that the requested accommodation would pose significant difficulty or expense to the employer. However, the ADA also contains a backstop for the employer. If an employee cannot meet job-related requirements consistent with business necessity due to their disability, the employer may terminate them or not hire them if it shows that the employee in question would pose a direct threat to the health and safety of others at the work site.
Does Union Membership Affect Whether An Employee Must Comply with Employer-mandated Vaccination?
In situations where union members have a collective bargaining agreement in place with the employer, the employer may need to review the agreement to determine whether mandatory employee vaccines require union buy-in.
Does Maryland State Law Allow Mandatory Vaccination Policies?
The simple answer about Maryland’s approach to mandatory employee vaccines is that they are permissible. In fact, Maryland at one point mandated that certain employees get vaccinated.
That being said, an employee’s understanding of what they must do, and an employer’s understanding of what they can do, will depend on their particular situation.
When faced with a decision that concerns your workplace or your well-being, hiring a firm with an experienced bench of labor and employment law specialists can help you better understand your choices. Call the Smithey Law Group LLC today.
