Business Counselor September 24, 2021 Dominic T. Clolinger, Michael J. Huff

Employer Vaccine Mandates Raise Legal Issues

Due to the increase in the number of COVID-19 variants and pending OSHA regulations, employers are again faced with deciding whether to issue a vaccine mandate. Unsurprisingly, determining whether to implement a vaccine requirement raises a bevy of questions for employers, including whether such a mandate should be implemented and how such a mandate would be enforced.

Most importantly, employers considering implementation of a vaccine requirement for employees need to assure that their vaccination policy is in compliance with existing employment laws. Notably, the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, the Genetic Information Nondiscrimination Act, and various state employment laws all affect the ability of employers to impose vaccine mandates on employees.

Once a mandate is implemented, an employer will likely begin receiving employee exemption requests. Employees may be entitled to an exemption if they possess a sincerely held religious belief or have a qualifying disability under the ADA and/or similar state disability statutes that prevent them from being vaccinated. As a result of pending litigation, the considerations applicable to these types of exemptions continue to evolve. Prior to instituting a mandatory vaccination policy, employers should provide management or those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Assuming the employee has a qualifying exemption, the employer must then determine whether a reasonable accommodation may be provided. What constitutes a “reasonable accommodation” varies with each employee and each workplace. Generally, if an employer is going to bar an unvaccinated employee from the workplace, the employer must show that significant risk of substantial harm to the health or safety of the individual or others cannot be eliminated or reduced by reasonable accommodation. Thus, in certain circumstances, alternatives such as telework may be a relevant consideration for employees who refuse a vaccine rather than termination.

Many employers may want to consider offering incentives to employees to encourage them to obtain a COVID-19 vaccine. However, such incentives may trigger wage and hour concerns and generally need to be structured in such a manner that they are not coercive if the vaccine will be administered by the employer or its agent.

Because of the numerous considerations applicable to implementation of a vaccine mandate, employers should contact Nikole Canute, Scott Dwyer, or Nate Wolf prior to compelling any employees to be vaccinated for COVID-19.