Employers React to Workers Who Refuse a COVID-19 Vaccination

[This article has been updated]

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any businesses continue to review and revise their COVID-19 vaccination policies as the pandemic persists—and employers may be asking what they can do if workers refuse to get the jab. Some employers are firing workers or putting them on unpaid leave. Others are requiring unvaccinated employees to submit to weekly testing and take other safety precautions. 

The Equal Employment Opportunity Commission (EEOC) has periodically updated its guidance in response to workplace vaccination questions. Significantly, the agency said that the federal anti-discrimination laws it enforces don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons, including pregnancy-related reasons, or based on sincerely held religious beliefs, unless an accommodation would cause undue hardship for the business. 

Additionally, if workers are covered by a collective bargaining agreement, employers may need to negotiate with the union before mandating vaccines, noted John Lomax, an attorney with Snell & Wilmer in Phoenix.

In response to an influx of questions about religious accommodations, the EEOC made its own internal accommodation request form available to the public. "Although the EEOC's internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic," the agency said. 

Disability Accommodation

"If an employee refuses to obtain a vaccine, an employer needs to evaluate the risk that objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine," Lomax said.

A vaccination mandate should be job-related and consistent with business necessity. Under the Americans with Disabilities Act (ADA), an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace."

If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose such a threat. The EEOC defines a "direct threat" as a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation."

The agency said employers should evaluate four factors to determine whether a direct threat exists:

• The duration of the risk.
• The nature and severity of the potential harm.
• The likelihood that the potential harm will occur.
  
• The imminence of the potential harm. 

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.  

"Managers and supervisors responsible for communicating with employees about compliance with the employer's vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom to refer the request for full consideration," the EEOC said.  

Employers and employees should work together to determine whether a reasonable accommodation can be made. Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said employers should evaluate:

• The employee's job functions.
• Whether there is an alternative job that the employee could do that would make vaccination less critical.
• How important it is to the employer's operations that the employee be vaccinated.

Religious Accommodation

Title VII of the Civil Rights Act of 1964 requires an employer to accommodate an employee's sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an "undue hardship" is created by an accommodation that has more than a "de minimis," or very small, cost or burden on the employer.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief," according to the EEOC. "However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information."

"If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace," said Johnny C. Taylor, Jr., SHRM-SCP, the Society for Human Resource Management's president and chief executive officer. "But this doesn't mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities."

Litigation Outcomes Vary

The federal government and some state leaders want to require certain workers to get vaccinated against the coronavirus (or at least test weekly for COVID-19), while other state leaders seek to ban such mandates or expand exemptions. 

The Occupational Safety and Health Administration (OSHA) has officially withdrawn its COVID-19 vaccination-or-testing Emergency Temporary Standard (ETS) in light of a Supreme Court ruling that halted the directive. The ETS would have applied to private-sector employers with at least 100 employees.

However, the high court allowed the Centers for Medicare & Medicaid Services (CMS) to proceed with a directive that applies to health care workers at Medicare- and Medicaid-certified providers and suppliers. 

State and local rules vary, but they usually give employers the option to ask employees to show vaccination proof or submit to weekly COVID-19 testing, wear masks, and keep physically distant from other workers and visitors.

Some organizations may deem the testing alternative as a financial and administrative burden and opt to fire employees who don't comply with a vaccine mandate unless they have a medical or religious objection that can be reasonably accommodated. 

Employers should note that—even though some federal directives have been blocked by courts—judges have generally sided with the employer in lawsuits challenging a private company's vaccination requirements.

[Does your organization have a vaccination strategy? Take the quiz.]

To complicate matters, some states are aiming to ban vaccination mandates, which may force businesses to choose between complying with federal or state orders.

When employers are covered by conflicting federal and state laws, the federal rules will generally pre-empt state law, however, federal rules are not applicable across the board, so their impact on each employer must be reviewed individually, said Jacqueline Del Villar, an attorney with Fisher Phillips in Houston.

If employers are ultimately covered by a federal vaccination directive, they can accommodate employees with qualifying requests by offering weekly testing in lieu of requiring vaccinations, Del Villar noted. "These practices can be modified as new federal rules are issued and/or legal challenges play out."

Encouraging Vaccinations

"If an employer plans to require its employees to get a COVID-19 vaccine, it should develop a written policy," Hechtkopf recommended. For employees who refuse to be vaccinated, she said, the employer needs to find out why.

In addition to legally protected reasons, employees may have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation. "Employers considering mandating vaccines should give very serious consideration to this issue," said Brett Coburn, an attorney with Alston & Bird in Atlanta. If a significant portion of the workforce refuses to comply, the employer may be put in the very difficult position of either adhering to the mandate and terminating all of these employees, or deviating from the mandate for certain employees, which Coburn said can increase the risk of discrimination claims.

Employers that are not required to mandate vaccination may wish to continue focusing on steps they can take to encourage and incentivize employees to get vaccinated. For example, Coburn said employers may want to:

• Develop vaccination education campaigns.
• Make obtaining the vaccine as easy as possible for employees.
• Cover any costs that might be associated with getting the vaccine.
• Provide incentives to employees who get vaccinated.
• Provide paid time off for employees to get the vaccine and recover from any potential side effects.