Several major pharmaceutical firms have been racing to develop a COVID-19 vaccine since the pandemic began. On November 9, 2020, Pfizer and BioNTech became the frontrunners, announcing that the early results of its clinical trials indicate that its COVID-19 vaccine is 90% effective at preventing the disease. Pfizer and BioNTech are now working to prepare the necessary safety and manufacturing data to submit to the Federal Drug Administration to demonstrate the safety and quality of the vaccine. If the FDA approves the vaccine, based on current projections, Pfizer and BioNTech expect to produce up to 50 million doses in 2020 and up to 1.3 billion doses in 2021.
With a COVID-19 vaccine on the horizon, many businesses and organizations are now asking: Can employers mandate a COVID-19 vaccine as a condition of employment? The answer is: yes; private employers may legally require employees to obtain a COVID-19 vaccine as a condition of employment. But an employer’s right to do so is not unlimited. Employees may be exempt from a mandatory vaccination policy based on a qualifying disability under the Americans with Disabilities Act or a sincerely held religious belief under Title VII of the Civil Rights Act of 1964.
The Americans with Disabilities Act
Employees with a qualifying disability under the ADA that prevents them from taking a vaccine may be entitled to an exemption from a mandatory vaccination policy. According to the EEOC, employers must provide reasonable accommodations to employees that are exempt from a mandatory vaccination policy based on an ADA disability, unless doing so would result in undue hardship. Under the ADA, an undue hardship means a “significant difficulty or expense” when considered in light of the net cost of the accommodation, the employer’s overall financial resources, and the impact of the accommodation on the employer’s operation.
Title VII of the Civil Rights Act of 1964
Employees may also be exempt from a mandatory vaccination policy under Title VII of the Civil Rights Act of 1964. Under Title VII, an employee may be exempt based on a “sincerely held religious belief.” Generally, personal or ethical objections to a mandatory vaccination policy are insufficient. If an employer receives notice of an employee’s sincerely held religious belief, the employer must provide that employee with a reasonable accommodation, so long as the accommodation does not pose an undue hardship. Under Title VII, undue hardship is defined as having “more than de minimis cost” to the operation of the employer’s business. In evaluating undue hardship, courts consider the harm to the employer, the harm to the employees, and the harm to third parties.
Additional Considerations
- While employers may mandate COVID-19 vaccination as a condition of employment, subject to the exemptions explained above, employers should also consider all available options and approaches to workplace vaccination, including encouraging voluntary vaccination, social distancing, face coverings, and remote work. Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that, even during a pandemic, “employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
- The EEOC guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act has been updated to address its application to the COVID-19 pandemic.
- A September 2020 Gallup Poll found that only 50% of Americans are willing to take an FDA-backed COVID-19 vaccine. The skepticism associated with a COVID-19 vaccine may be due in large part to the fact that, unlike the flu vaccine, a COVID-19 vaccine will not benefit from a long track record of safety when it is first released. Thus, employers that ultimately decide to implement a mandatory COVID-19 vaccination policy should be prepared to face potential pushback from employees.
- In light of the recent developments regarding the Pfizer and BioNTech vaccine, prudent employers should begin developing an approach to COVID-19 vaccinations in the workplace. In particular, policies and procedures for evaluating and administering accommodation requests made by employees based on a disability under the ADA or religious belief under Title VII.
In 2012, Rhode Island became the first state to pass a law requiring all healthcare workers to obtain a seasonal flu vaccine. Whether Rhode Island or any other state will pass similar laws or regulations for a COVID-19 vaccine remains to be seen. Employers should continue to monitor federal and state regulations, laws, and guidance pertaining to a COVID-19 vaccine and the workplace. In any event, if and when the FDA approves a vaccine, additional federal and state guidance on workplace vaccinations will likely follow.
