Returning to Work in a Post-COVID Workplace
By Tad Roumayah
You are returning to work and you have questions. We have answers.
Can my employer legally require me to get a COVID-19 vaccine?
COVID-19 shots are going in arms, and employees across the country are returning to their workplaces. Since early May 2021, over 35 percent of Americans were fully vaccinated against COVID-19. Over 80 percent of Americans live less than five miles from a vaccination site. Studies continue to show that COVID-19 vaccinations are safe and are up to 94 percent effective at preventing symptomatic COVID-19. However, the accessibility and demonstrated safety and efficacy of the vaccines does not mean that everyone is on board.
But many workers who are dragging their feet or refusing COVID-19 vaccinations may be in for a rude awakening when they discover that their employer feels differently about the importance of inoculating its workforce. And if their employer tells them to get a COVID shot or get a new job, an employee who refuses vaccination will likely become unemployed.
According to guidance from the Equal Employment Opportunity Commisson (EEOC), employers can legally mandate COVID-19 vaccinations for employees and, in most cases, fire employees who do not get the vaccine. Moreover, an employer can legally require that an employee show proof of receipt of a COVID-19 vaccination. With that said, there are some narrow legal exceptions to an employer’s requirement that an employee be vaccinated against COVID-19. These exceptions fall under two federal civil rights statutes that provide for employee rights in the workplace: the Americans with Disabilties Act (ADA), which applies to employers with 15 or more employees, and Title VII of the Civil Rights Act of 1964, which applies to employers with 10 or more employees.
Employers can exclude the unvaccinated if they are a “direct threat”
The EEOC’s guidance does not explicitly say that employer-mandated vaccinations are lawful, but it does not need to. Most employees in Michigan and across the country work on an “at-will” basis, which means they can be fired for almost any reason other than those prohibited by federal, state, or local laws, such as race, gender, pregnancy, age, religion, or disability. And, generally, that reason can include the refusal to get a vaccination required by the employer.
However, if a COVID-19 vaccination mandate screens out or tends to screen out a job candidate or employee whose disability precludes them from getting the vaccine, then under the ADA the employer must demonstrate that the unvaccinated employee would present a “direct threat to the health or safety of individuals in the workplace.”
According to the EEOC, an employer can exclude an unvaccinated employee from the workplace if it concludes that their presence creates a direct threat, including “a determination that an unvaccinated individual will expose others to the virus at the worksite.”
To determine whether an unvaccinated employee represents a “direct threat” to others’ health and safety, the EEOC advises employers to conduct an individualized assessment of the employee’s circumstances considering the following four factors:
• The duration of the risk posed by the employee
• The nature and severity of the harm the employee could potentially cause
• The likelihood that the potential harm will occur.
• The imminence of the potential harm
Employers must make “reasonable accommodation”
However, even where a direct threat exists by an unvaccinated employee whose disability precludes the employee from taking the vaccine, an employer still must attempt to reduce the threat posed by the unvaccinated employee through reasonable accommodation, according to the ADA. An employer cannot exclude a disabled and unvaccinated employee from their workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the [disabled] unvaccinated employee does not pose a direct threat,” the EEOC advises.
Religious objections
The anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect workers if their “sincerely-held religious beliefs” prevent them from getting a vaccination. Importantly, such beliefs do not include political or personal views. The legal burden is on the employee to prove the legitimacy of their sincerely-held religious beliefs. According to the EEOC, if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, then the employer may request additional supporting information verifying the particular belief, practice, or observance.
As employers must do with individuals whose disabilities prevent them from getting vaccinated, they also must make accommodations for those with a sincerely-held religious objection unless doing so would cause “undue hardship” to the employer.
In sum, an employer can legally mandate that its workforce be vaccinated against COVID-19, and it can legally require its employees to produce proof of vaccination. An employee’s political or personal views are insufficient to form a legal exception to an employer’s required vaccination policy. However, certain (albeit limited) legal exceptions do exist to an employer’s required vaccination policy, such as disabilities and sincerely-held religoius beliefs, which prevent an employee from being inoculated.
Tad T. Roumayah is a senior shareholder with the law firm of Sommers Schwartz, P.C., and represents employees subjected to discrimination, whistleblower retaliation, wrongful discharge, wage and hour violations, and other workplace disputes. He also advises companies on human resource policies, procedures, and other employment-related matters.