By Alex D. Ivan, Attorney, Kennedy & Graven
Given the impact of COVID-19 and the emergency use authorization (EUA) of vaccines, employers may be considering whether to impose mandatory vaccination policies or require proof of vaccination before permitting employees to return to the workplace. Vaccination mandates are not new, especially in health care and public education. But before imposing mandatory workplace vaccination policies, employers should consider their legal ramifications.
Federal and State Anti-discrimination Laws
The U.S. Equal Employment Opportunity Commission (EEOC) recently clarified employees’ rights relative to mandatory COVID-19 vaccination policies. Although the EEOC recommended employers encourage vaccination rather than require it, the EEOC also opined that employers may in some circumstances be able to mandate the COVID-19 vaccine among their employees without violating federal anti-discrimination laws.
The EEOC’s guidance does not mean an employer can force every worker to obtain a COVID-19 vaccination. Federal anti-discrimination laws such as Title VII and the Americans with Disabilities Act (ADA) and their state equivalent, the Minnesota Human Rights Act (MHRA) (which courts often interpret similarly), would obligate employers to exempt employees who object based on sincerely held religious beliefs or qualifying disabilities.
Once an employer knows that an employee’s religious belief or qualifying disability prevents him or her from complying with a vaccine mandate, the employer must provide a reasonable accommodation, unless the accommodation would pose an undue hardship.
Employers are not required to provide an accommodation until they know one is needed. There is no magic word requirement, but the employee must give an employer sufficient information to know that the employee’s religious belief or disability conflicts with workplace policy.
Employers should engage in the interactive process, discussing the request with the employee to determine which accommodations might be effective and reasonable. Ultimately, an accommodation’s reasonableness hinges on the circumstances underlying it.
Employers are not required to adopt an employee’s requested accommodation, and where more than one reasonable accommodation is available, the employer need not provide the employee’s preferred one.
Employers should consider whether they can accommodate an employee’s refusal while maintaining workplace health and safety. Even before vaccines, employers were using various measures that have been shown to reduce the risk of transmission.
These measures could include:
- Increasing employees’ use of personal protective equipment, such as masks, face shields or gloves.
- Enforcing social distancing while enhancing workplace hygiene protocol.
- Transferring the employee to work at a location more isolated from co-workers or reassigning the employee to a job requiring less interaction with the public and others.
- Granting remote work.
- Providing a temporary leave of absence.
An employer may refuse to provide a reasonable accommodation when granting it would result in an “undue hardship.” Although that term is used in both Title VII and the ADA, courts have interpreted the term differently between the two laws. Undue hardship also varies across employers by any number of factors, including the type of workplace, the nature of the employee’s job duties, the accommodation’s cost relative to the employer’s size and the number of employees who will need a particular accommodation.
Asserting that doing so increases the risk of transmission, public schools, libraries, law enforcement, fire departments, health care facilities and others could all conceivably claim undue hardship in accommodating employee-requested exemptions to COVID-19 vaccinations. However, where employees can or already are engaged in remote work, employers may find it difficult to persuasively claim undue hardship.
The degree of hardship may be bolstered when more information becomes available about the extent to which the vaccines prevent transmission of the virus to others.
Case law has not developed surrounding COVID-19-specific policies, but a recent decision from the Court of Appeals for the Fifth Circuit may be instructive to Minnesota courts addressing accommodations offered in response to requests by employees for exemptions to COVID-19 vaccination policies.
In Horvath v. City of Leander, the city offered a firefighter who refused a mandatory tetanus, diphtheria and pertussis vaccine on religious grounds a choice of two accommodations: He could be reassigned to a position with “the same pay and benefits” that did not require vaccination or he could “remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases when his health condition justified, and keep a log of his temperature.”
Horvath declined both. The city concluded his refusals constituted insubordination and terminated his employment. The court held the city offered Horvath a reasonable accommodation. The court reasoned that Horvath had two “generous” options available, one of which was the offer to transfer him to a position with no vaccination requirement at the same pay and benefits.
Although the court did not specifically address the respirator accommodation, future courts considering the reasonableness of employer-proffered accommodations to mandatory COVID-19 vaccination policies may look to Horvath because use of a respirator to minimize diphtheria and pertussis transmission is analogous to use of a face mask to minimize COVID-19 transmission.
Unlike private employers, state and local governments must also consider constitutional arguments against mandatory vaccination policies. Although the First Amendment’s free exercise clause restricts government action impinging on religious liberty, the clause’s scope protects against government regulation of religious beliefs. It does not place all religious acts beyond the reach of otherwise valid laws.
Therefore, even if an employee opposes vaccination because of a religious belief, the free exercise clause does not require a government employer to exempt that employee from a mandate that applies to all employees.
Government employers who impose vaccine mandates may not run afoul of the First Amendment, the same cannot always be said for state constitutions, which often provide greater protections than federal rights.
The Minnesota Supreme Court has interpreted Minnesota’s constitution as affording greater protection from government action that infringes on religious liberties. Under State v. Hershberger, only the government’s interest in peace or safety or against acts of licentiousness will excuse burdens on religious freedom.
Once an individual demonstrates a sincere religious belief that opposes a generally applicable law, the government must demonstrate that public safety cannot be achieved by alternative means.
The heightened scrutiny in Hershberger has not been applied to mandatory vaccination policies, but a government employer that imposes a mandate with no exemption for employees whose religious beliefs conflict with the policy will have to prove that a compelling interest justifies the mandate and that the mandate is the least restrictive means of furthering that interest.
Although it will be difficult to identify a compelling interest that can only be furthered by mandatory vaccination, not all vaccine mandates are necessarily unlawful. As with Title VII, Hershberger requires government employers to consider exemptions or other accommodations for employees with religious objections.
Given the emergency use authorization procedures under which COVID-19 vaccines have first become available, employers should consider the possibility of liability if employees have adverse reactions to mandated vaccines. These cases have not been tested in the courts with respect to COVID-19, but similar cases suggest that adverse reactions to mandatory vaccinations may form the basis of a viable workers’ compensation claim.
The Occupational Safety and Health Administration’s general duty clause requires employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. OSHA has reissued its guidance from the 2009 H1N1 virus, explaining that although employers could require employees to take vaccines, employees “need to be properly informed of the benefits of vaccinations.”
OSHA further recited in this guidance that an employee who “refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine)” may be protected under OSHA’s whistleblower protections.
Collective Bargaining Implications
Mandatory vaccination policies may also have collective bargaining implications. Given both the politicized nature of responses to the COVID-19 pandemic and the anti-vaccination movement, which pre-date COVID-19, employers attempting to implement mandatory vaccination policies may face individual or coordinated resistance from employees.
If employees were to band together to protest mandatory vaccinations, such actions could constitute protected concerted activity under federal or state labor laws and insulate protesting employees from alleged retaliatory actions such as termination for refusing to be vaccinated.
For existing unionized workplaces, any mandated vaccination program may be a mandatory subject of bargaining. A reasonable argument could be made that a mandatory vaccination is a “term and condition of employment” as defined under Minnesota Statutes, Section 179A.03, subdivision 19.
There may be an argument that a collective bargaining agreement’s inherent managerial rights provision reserves sufficient employer discretion to implement health-related work rules under the agreement such as mandatory vaccination. Even then, however, an employer would still likely be required to engage in “effects bargaining” with the union to discuss how the program would be implemented.
Practical and Other Considerations
Any mandatory program would likely require employer policies addressing such issues as who pays for the vaccine, whether employees receive paid time off to get vaccinated, how employees prove their vaccinations, whether employees would be required to re-vaccinate if vaccine protection wears off, and what happens if vaccines are unavailable.
Similarly, employers would likely have to decide whether they would terminate employees for not receiving the mandatory vaccination and make sure that any such discipline were uniformly implemented to avoid discrimination claims.
Relatedly, if an employer were to mandate vaccinations for only certain segments of its workforce, it may need to conduct a prior review to ensure that the program—although uniformly applied to all employees in the selected job classification(s)—does not have a disparate impact on individuals in certain protected groups.
For instance, if employees in certain segments of the workforce happen to be disproportionately members of protected groups and if only those employees are subject to the vaccine mandate (including potential discipline for noncompliance), then those employees could potentially bring a disparate impact discrimination claim alleging that the mandatory vaccination program unlawfully targets protected individuals.
Notwithstanding the EEOC’s guidelines, another curve ball may be coming. Employees are filing claims asserting they cannot be required to take a vaccine approved only under an EUA. When Congress created that expedited drug approval pathway, lawmakers included a disclosure requirement for individuals offered an EUA product.
Specifically, a person must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” Courts have not had opportunity to interpret that provision, but its language suggests mandates for EUA vaccines are categorically prohibited.
COVID-19 vaccines offer hope for a return to normalcy. Well-intentioned employers may want to expedite that process using mandatory vaccination policies or policies that require employees to show proof of vaccination before returning to the workplace. But there are good reasons to take a more measured approach, at least until vaccinations receive full approval.
For the time being, employers may want to consider encouraging vaccination on a voluntary basis and avoid the potential objections, requests and litigation that could follow a mandate.