By Reggie Belcher and Hannah D. Stetson,

Turner Padget Graham & Laney PA

While the Covid-19 vaccine serves as a beacon of hope for a society eager to return to pre-pandemic life, it also presents a new host of challenges for employers.

Most notably, an employer must consider whether it can legally require its employees to receive the vaccine, and, if so, whether a vaccine mandate is a practical business decision.

EEOC Guidance

On Dec. 18, 2020, the Equal Employment Opportunity Commission (EEOC) published guidance regarding issues related to mandatory vaccines, the Americans with Disabilities Act (ADA) and Title VII of the 1964 Civil Rights Act (Title VII).

This guidance supports a conclusion that employers can require employees receive the Covid-19 vaccine without violating federal employment laws, subject to limited exceptions under Title VII and the ADA.

With respect to the ADA, an employer may be required to provide a reasonable accommodation to an employee with a qualified disability that prevents the individual from receiving the vaccine. In the context of a vaccine, a qualified disability could include asthma, allergies or even anxiety.

However, an employer is not required to provide a reasonable accommodation if no reasonable accommodation exists, if the reasonable accommodation would present an undue hardship to the employer, or if the employee would pose a direct threat to the health or safety of others.

Whether an employee constitutes a “direct threat” to others includes a consideration of whether an employee poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

With respect to Title VII, an employer must provide a reasonable accommodation to an employee with a sincerely held religious belief that prevents the individual from receiving the vaccine. If an employer knows that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice or observance unless doing so would pose an undue hardship, as defined by Title VII.

“Undue hardship” is a high standard, rarely invoked, and requires more than a de minimis cost or burden on the employer.

If an employee cannot get vaccinated for Covid-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would likely not violate federal employment law for the employer to exclude the employee from the workplace. However, this does not mean the employer may automatically terminate the worker.  

Employers will need to determine if the employee has other rights under federal, state and local laws. For example, a joint resolution is pending in the South Carolina Senate that would make the Covid-19 voluntary and prohibit an employer from terminating an employee based on a refusal to take the vaccine. While this resolution is not likely to pass, it serves as an example as to why employers must consider more than just federal employment laws when making their vaccination policy decisions.

Practical Considerations

Considering business risks that come with a mandatory vaccine policy is perhaps as important as considering legal risks. By implementing a mandatory vaccine policy, an employer could lose valuable employees who have no legal grounds for objection but simply will not consent to receiving the vaccine. This could be costly to business, both in terms of staffing as well as morale.

As a practical matter, it could be more effective for an employer to strongly encourage vaccination, provide educational materials to employees regarding the vaccines and consider providing incentives to employees who chose to receive a vaccine. Incentives could range from providing vaccination opportunities on site to additional paid time off or de minimis gift cards.

Under either scenario, whether mandatory or voluntary, an employer should consider issuing a written vaccine policy to employees and requiring an employee to execute an acknowledgment noting receipt and understanding of the same.

We recommend consulting with legal counsel to ensure you understand the legal and practical considerations of the Covid-19 vaccine for your business.