COVID-19 Vaccination Policy

By: Robert W. Small, Esquire

December 22, 2020 - 12:32 PM

            Now that winter is upon us, so too is the annual flu season. Many Employers have or will adopt policies requiring some or all of their employees to get flu shots. This year, those policies might be extended to require COVID-19 vaccinations now that one is FDA approved. At least three federal laws are implicated by such policies: the Occupational Safety and Health Act (“OSHA”), the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII.”) State laws also must be taken into consideration. There are 45 states plus the District of Columbia that grant religious exemptions from state laws that require immunization from certain diseases for people who have religious objections. Currently, 15 states allow philosophical exemptions for those who object to immunizations because of personal, moral or other beliefs. Those laws should be consulted to see if they would impact a private Employer’s vaccination policy.

             Under OSHA, Employers have a general duty to provide a workplace free of recognized hazards and in fulfillment of that duty, Employers may create health and safety policies that are “job-related and consistent with business necessity.” This standard makes obvious that a policy that might be appropriate in a healthcare or childcare setting might not be appropriate for the factory floor or administration offices, which means that there can be no “one size fits all” approach to adopting such policies. Rather, Employers must evaluate their own workplace and even different segments within their workplace in creating policies requiring employees to get vaccinations to be sure they meet the “job-related and consistent with business necessity” standard.

             Where such policies satisfy that test, Employer may require flu (and, presumably COVID-19) shots and may discipline employees who refuse to be vaccinated unless an employee has a legitimate basis to object. Some employees may be entitled to a medical exemption from such a policy under the ADA. Other employees might be entitled to a religious exemption under Title VII or under a state law. The test under federal law is whether the exemption poses an “undue hardship” on the Employer. Employers must carefully evaluate the requirement of any vaccination policy, considering all relevant factors. Without limitation, these include, the risk to co-workers and the public of granting an exemption, other ways of limiting the spread of infections such as requiring “social distancing” in the workplace, providing masks and other personal protection equipment, (“PPE”) physical alteration of the workplace, such as moving workstations or placing barriers between them or modifying scheduled work hours or shifts. What might prove an undue hardship in one setting will not necessarily be so in another; not only as between different Employers but within different work environments within a single Employer. For example, the need for vaccinations in a healthcare setting might differ as between employees having direct patient contact and those performing strictly administrative duties. If the Employer requires proof of vaccination it is critical that such proof be treated as a medical record.

             If an employee request to be exempted from a vaccination requirement, the Employer must engage in the interactive process common under the ADA, but that obligation is not limited to where the request for exemption is based on a disability. Requests based on religious, moral or philosophical grounds must be given credence. Here, the landscape is wide open, and Employers should be both flexible and creative in trying to find an accommodation acceptable to both sides without losing sight of the reason for their policy but filtering all requests for accommodation through that lens. Many accommodations that would be considered in the more typical disabilities accommodation request situation will work with requests for accommodation related to vaccine policies, including, changing work schedules, moving employees to another location, temporary remote working or providing PPE, but Employers are not required to eliminated essential job functions or create a new job as an accommodation. Good faith is the watchword in handling all accommodation requests.