By Attorney Emilee Gehling
April 12, 2021
Now that vaccines are becoming readily available, many employers are asking what they can and cannot do to manage their workplace and COVID. In this article, we will examine whether an employer can require Covid-19 vaccines.
According to the Equal Employment Opportunity Commission (EEOC), an employer may require employees to be vaccinated. However, there are two major exceptions to this requirement. The employer’s reason must be job-related. For instance, if an employer hires only work-from-home employees across the country, it may have a hard time arguing a vaccine is required to keep its workplace safe. However, most private employers who have an office or shop environment would have a strong job-related reason to keep its employees save from the Covid-19 virus.
The two main areas a private employer will have to tread carefully when mandating that employees receive the vaccine are: (1) religious objection and (2) medical exemption. Let’s look at each of these in turn. First, an employee who chooses not to receive a vaccine for religious reasons must have a sincerely-held belief. What is a sincerely-held belief? Courts look at four factors. The first element is that the employee shows in her behavior consistency with her religious beliefs. Next, the court may look at whether the accommodation (i.e. the exemption from vaccine) is desirable and likely to be sought for religious reasons. The timing of the request is another factor. Is the timing suspicious? Finally, is there another basis to conclude that the request is not actually made for religious reasons? Thus, an employer can look to external circumstances and outside clues when it decides to accept a request for a religious exemption. That said, if an employee makes this religious request, it is worth seeking the opinion of an attorney to limit the risk to an employer if the employer does believe the religious request is not proper.
Second, an employee’s religious exception cannot create an undue hardship on the employer. The undue hardship must be more than a de minimus cost to the employer. For example, if an employee can work in a separate area from other employees or work from home, this may be considered a de minimus cost to the employer. That is, the employer will need to accommodate the employee’s religious belief if it can without a significant cost.
The Occupational Safety and Health laws (OSHA) require employers to provide a safe and hazard-free environment. I believe this area of law is developing, and we will likely see further legislation and/or jurisprudence as this develops. That is, how high is the burden for an employer to provide a workplace where an employee is not unduly exposed to the Covid-19 virus in the midst of what is widely billed as a global pandemic?
If an employer does mandate vaccines, the employer is required to offer paid leave for the time the employee spent to obtain the vaccine. The employer is also required to offer paid leave if an employee becomes ill because of the vaccine itself. This would be up to 80 hours of time off. Federal reimbursement is available to employers for these expenses. In many states, an employer may not be required to offer additional paid time off, beyond what the employer already offers to such an employee, but some states specifically do require that this be additional paid time off offered to the employee.
Whether a governmental employer or employer who employs unionized employees can mandate the vaccine is the subject of another article.