As the pandemic rages, businesses must answer daily questions regarding how to run their companies during this unprecedented time. And now that three vaccines have hit the market, even more questions arise about employer COVID-19 vaccination policies.
Many people are thrilled to receive the vaccine in the hopes of ending the pandemic and the horrific effects it’s had on our economy and daily lives. But some are wary of getting a vaccine created and approved so quickly. And if you are an employer faced with an employee who refuses to take the shot, what are your options? Can you terminate an employee who refuses the shot?
Well, the short answer seems to be yes. But the state of the law is a bit murky on this issue because employer COVID-19 vaccination policies have not yet had a chance to be challenged in court. However, we can look at current rules regarding vaccination requirements at work and extrapolate those rules to include the COVID-19 vaccines. Keep in mind that if and when employees challenge any such employment requirements, the state of the law as it relates explicitly to COVID-19 shots may change.
The EEOC Weighs In
The United States Equal Employment Opportunity Commission (EEOC) issued a publication on December 16, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The commission clearly states that employers can require their employees to get vaccinated before returning to the workplace. But the updated version examines the legality of such employer COVID-19 vaccination policies and requirements in the face of three laws:
- The Americans with Disabilities Act (ADA);
- The Civil Rights Act of 1964, Title VII; and
- The Genetic Information Nondiscrimination Act (GINA).
Like so many other states in the union, Maryland is an at-will employment state. At-will employment means that your employer can fire you for any reason or no reason at all, as long as they don’t fire you for an illegal reason. Therefore, in at-will work states, firing people is only limited by specific discrimination laws and employment contract provisions. If an at-will employee refuses to get the shot, an employer can terminate them as long the termination does not violate the Civil Rights Act, the ADA, GINA, or state law.
Federal Law Creates Two Exceptions
Essentially, the EEOC states that the ability of any employer to make vaccination mandatory as a condition of returning to work is subject to two exceptions based on the Civil Rights Act, the ADA, and GINA. These exceptions apply when an employee objects to the vaccination (1) based on sincerely held religious beliefs or (2) because they have a disability that the vaccination could exacerbate.
Under the Civil Rights Act of 1964, employers cannot discriminate based on religion. Some employees may hold sincere religious beliefs that prevent them from getting vaccines. If so, there are some steps an employer should take before firing them over refusing the shot.
First, the employer must determine if the employee poses a direct threat of harm to others at the company. This includes both co-workers and customers. And if they do pose a threat, are there reasonable accommodations that an employer can implement to minimize the risk? Employers should analyze each case based on the following factors:
- How long might the threat of harm to others last?
- How serious is the potential harm?
- How likely is it that the harm will occur?
- Is the potential harm imminent?
If harm is likely to occur imminently and is of substantial duration and seriousness, the next question is whether the employer can reasonably accommodate the individual.
Is there something the employer can do to keep an individual away from others to minimize harm? For instance, if the employee is a bookkeeper, the employer could provide a private office away from other workers. Or that employee could work from home. The chances are pretty good that a bookkeeper was working from home during much of 2020. Therefore, employers would have difficulty arguing that the employee could not perform their duties remotely.
If such accommodation is reasonably possible, employers should make such accommodations in lieu of termination. However, the law does not expect employers to impose hardship on the company to make accommodations for personnel who refuse a vaccine. Therefore, if accommodations are too expensive or impractical, an employer can refuse to implement them.
Furthermore, an individual’s job duties may require them to have frequent interaction with co-workers and customers. If they cannot perform their job without the risk of infecting others, there may be no reasonable accommodations that exist to allow job retention.
The analysis is much the same for people with disabilities that make them poor candidates for the shot. An employer should assess the nature of the threat to others and attempt to provide reasonable accommodations. But with disabilities, there are additional considerations related to vaccine screening questions.
The ADA prohibits employers from requiring medical examinations or asking questions that may result in the disclosure of private health information related to a person’s disability. The EEOC determined that getting the vaccine does not constitute a medical examination under the ADA. However, pre-screening questions asked of vaccine candidates may enter a murky area here. These questions can, in fact, reveal information about an individual’s disability. Therefore, if an employer plans to mandate COVID-19 vaccination as a requirement of returning to work, they may want to have an unrelated third party administer the vaccines. As long as the company itself or a party hired by the company does not administer the vaccine, provisions of the ADA are not violated.
Let Us Help
The law in this area is in a state of flux. Some argue that due to the emergency FDA approval of the vaccines, individual choice is paramount. The argument goes something like this: vaccines studied for less than two years should never be mandatory. So if you are an employer trying to decide how to implement a policy on COVID-19 vaccinations, it is time to speak to the experienced and knowledgeable employment law legal practitioner at the Smithey Law Group. We can help you develop a plan that aligns with current law and assist you with any complications that arise. Call us today at 410-919-2990 or contact us online.