News and Insights

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By: Robert J. Milligan, Shareholder and Aaron E. Kacer, Associate Attorney

As COVID-19 vaccines become more widely available, health care organizations, medical practices, and other employers may consider whether, and under what circumstances, they will require employees to be vaccinated.  Employers who address this issue must balance the interests of patients and employees, who have a right to a safe office environment, with the interests of employees who have or claim to have legitimate objections to being vaccinated.  Finding balance will raise legal, ethical,[1] and policy[2] issues. 

As to the legal issues, the U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance regarding the extent to which federal laws permit employers to require employees to be vaccinated.[3]  The general rule is pretty straightforward: subject to certain exceptions, employers may require employees to be vaccinated.  As you might expect, the exceptions are less straightforward, relying on terminology that is susceptible to conflicting interpretations. 

The Americans with Disabilities Act (ADA) permits employers to impose “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”[4]  However, if requiring vaccinations “tends to screen out an individual with a disability,”[5] the employer must show that (a) an unvaccinated employee would pose a “direct threat”[6] due to a significant risk of substantial harm to the health and safety of the individual or others, and (b) the threat cannot be eliminated or reduced by a “reasonable accommodation”[7] (which may include remote work or a temporary leave of absence).

Title VII of the Civil Rights Act of 1964 (Title VII) imposes a religious belief exception, which requires employers to provide “a reasonable accommodation”[8] for an employee’s “sincerely held religious belief, practice or observance,” unless the accommodation would pose an “undue hardship.”  For purposes of this religious belief exception, undue hardship is defined as “more than a de minimis cost or burden to the employer.”[9] 

If an employee cites a medical or religious basis for objecting to the vaccine, the employer must engage in a “flexible, interactive process”[10] to determine whether it is possible to accommodate the employer’s and the employee’s interests.  This will not be a simple or clear-cut exercise, given the vagaries of the words and phrases used in the ADA, Title VII, and the EEOC guidance, all of which call to mind Humpty Dumpty’s comments about what words mean.[11] 

Unfortunately, there is no easy way out for employers deciding on whether and how to require employees to get vaccinated.  Employers who do not require vaccinations may face claims by patients and employees who contract, or are concerned about contracting, COVID-19; employers who require vaccinations may face claims by employees who object to that requirement.  Imposing a vaccination requirement seems to be a relatively low-risk option.  Significant difficulties will arise, however, if an employee claims a medical or religious exemption to the requirement.  At that point, seek legal advice to divine the meaning and application of the terms used in the ADA and Title VII, e.g., is a particular accommodation “reasonable,” is a burden “de minimis,” etc. 

This article is informational only and is not, nor should it be taken as, a substitute for, legal advice.


[1]  Gostin, L., et al., Mandating COVID-19 Vaccines, JAMA.  Published online Dec. 29, 2020. doi:10.1001/jama.2020.26553.

[2]  The Importance of COVID-19 Vaccination for Healthcare Personnel, Centers for Disease Control and Prevention, December 28, 2020; https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/hcp.html.

[3]  What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Technical Assistance Questions and Answers, US Equal Employment Opportunity Commission; updated Dec. 16, 2020, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.

[4]  42 U.S.C. § 12113(b).

[5]  42 U.S.C. § 12112(b)(6); 42 U.S.C. § 12113(a).

[6]  42 U.S.C. § 12111(3).

[7]  42 U.S.C. § 12111(9); 42 U.S.C. § 12113(a).

[8]  42 U.S.C. § 2000e-2(a); 42 U.S.C. § 2000e(j); Commission Guidelines, 29 C.F.R. § 1605.2(c).

[9]  Commission Guidelines, 29 C.F.R. § 1605.2(e)(1).

[10]  29 C.F.R. § 1630.2(o)(3); see 29 C.F.R. pt. 1630 app. § 1630.9.

[11]  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”