What to Know Before Setting a Vaccine Mandate for Site Employees

Government and private sector employers are requiring staff to be vaccinated. Should you?

While available vaccines have proven effective in controlling COVID-19 and its variants to date, the virus continues to spread, particularly among unvaccinated populations. Officials have been trying different approaches to increase vaccination rates from incentive programs to educational outreach.

Though the federal government isn’t requiring everyone get COVID-19 vaccines, the government as an employer as well as private-sector employers have been issuing their own vaccine mandates to fill the void. There’s been no indication that the federal government or Congress will attempt to impose a national vaccine mandate on all citizens. But the government and its various agencies are doing so as employers over their workforce.

The Veterans Affairs (VA) department announced that it plans to mandate the vaccine for its healthcare workforce. And on July 29, President Biden announced that federal government employees will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask at all times, test one to two times per week, socially distance, and generally won’t be allowed to travel for work. Relatedly, the Department of Defense has announced that it will require all of its employees, including uniformed personnel, along with civilian and contractor staff, to be vaccinated by mid-September, or when the vaccine receives U.S. Food and Drug Administration licensure, whichever comes first.

The Housing Authority of Baltimore City (HABC) recently issued a news release saying that it’s requiring its employees to show proof of vaccination by Sept. 1. The mandate was implemented because of rising coronavirus cases and a low vaccination rate among its 650 employees. In a statement, the Housing Authority’s president, Janet Abrahams, said, “We have spent months repeatedly stressing to our employees the importance of getting the shots, yet only about half have submitted proof of vaccination. Now with COVID cases increasing, our Board of Commissioners and I felt compelled to protect our co-workers and the residents we serve, especially our seniors and other vulnerable clients.”

Your site may be considering a similar mandate. But before imposing one, read on. We’ll go over Equal Employment Opportunity Commission (EEOC) guidance, the American with Disabilities Act (ADA), and other considerations. All employers, including state and local government employers, with 15 or more employees are covered under the ADA and Title VII of the Civil Rights Act of 1964.

Disability Accommodations

As COVID-19 vaccine mandates become more prevalent, employers are asking what recourse there is if workers refuse. Some employers are firing workers who won’t take the vaccine and others are requiring unvaccinated employees to submit to weekly testing and take other safety precautions.

With HABC’s mandate, employees who don’t comply with providing proof of vaccination by Sept. 1 are placed on a 45-day progressive discipline track that will end in termination if they continue to remain unvaccinated. However, HABC is making exceptions to the mandate for those who have a medical reason or religious belief.

In its guidance, the EEOC says that federal antidiscrimination laws don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must comply with the ADA, Title VII of the Civil Rights Act of 1964, and other workplace laws.

An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated. A vaccination mandate should be job-related and consistent with business necessity. Title I of the ADA requires employers to provide reasonable accommodation to qualified applicants and employees with a disability, unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace.

Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose such a threat. The EEOC defines a “direct threat” as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” The agency says employers should evaluate four factors to determine whether a direct threat exists:

• The duration of the risk.
• The nature and severity of the potential harm.
• The likelihood that the potential harm will occur.
• The imminence of the potential harm.

If an employee who can’t be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence. “Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration,” the EEOC states. 

Religious Accommodation

Employers also have an obligation to accommodate an employee’s sincerely held religious belief under Title VII of the Civil Rights Act, unless the accommodation creates an undue hardship. A "sincerely held religious belief" can include an employee’s religious-based objection to vaccinations.

Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, according to the EEOC, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.”

If an employee can’t get vaccinated because of a disability or sincerely held religious belief, and there’s no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace. But this doesn’t mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Safety Measures and Terminations

Two recent court decisions have addressed whether a hospital or public university can mandate a COVID-19 vaccine for employees and students. In both these cases, the federal court upheld the vaccine mandate, even while the current vaccines are only under Emergency Use Authorization [Klaassen v. Trustees of Indiana University, August 2021; Bridges, et. al. v. Houston Methodist Hospital, June 2021].

Some organizations are firing employees who don’t comply with a vaccine mandate. In the hospital case, the federal judge sided with a large hospital system that chose to fire employees who refused the shot. On April 1, Houston Methodist Hospital announced a new policy requiring all employees be vaccinated against COVID-19 by June 7 or face termination. In response, a total of 117 employees sued to block the requirement and resulting terminations. The employees argued that the policy violated Texas public policy and federal law, and that termination of employees who refused to be vaccinated would constitute wrongful termination. The court disagreed and upheld the employer policy. If employees refused to be vaccinated, unless they had valid religious or disability grounds, their employment could be terminated.

Encouraging Vaccinations

To minimize potential blowback from employees for imposing a vaccine mandate, you may want to focus on education and incentivizing employees to get vaccinated in the lead up to a mandate. If a significant portion of the workforce refuses to comply, the employer may be put in the very difficult position of either adhering to the mandate and terminating all of these employees, or deviating from the mandate for certain employees, which can increase the risk of discrimination claims.

In the HABC example, the housing authority board authorized a vaccine mandate in June and since then, held a virtual town hall with medical experts and hosted several vaccination clinics. Other ways to make obtaining the vaccine as easy as possible for employees is to cover any costs that might be associated with getting the vaccine and provide paid time off for employees to get the vaccine and recover from any potential side effects.