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  • Jim Schroeder

CAN EMPLOYERS IMPOSE COVID-19 VACCINATION ON EMPLOYEES?


The breakthrough of the COVID-19 vaccination comes with new questions for our culture to answer, especially in the workplace. Individuals with varying worldviews have their distinct perceptions of the vaccine backed by their religious doctrines.


Employers can indeed require employees to get a covid-19 vaccine, but they must make reasonable accommodations for those who do not want to take the vaccine for health or sincerely held religious reasons, except in cases where it creates an undue hardship or risk for an employer, other employees, or the workspace in general. This article discusses those issues and whether knowing an employer can require vaccination, should they?


What Is A Sincerely Held Religious Belief?

Sincerely held religious beliefs guide how individuals interact with the secular world and lead them to overrule participating in certain activities or upholding some general policies. In 2012, Paul Fallon worked with psychiatric patients in Pennsylvania, where his employer initiated a policy stating that all employees must get the flu shot. Fallon believed the flu vaccine could harm his body and may also do more harm than good. Fallon believed that he had a moral obligation not to harm his own body. After several years of back and forth, the employer asked for a letter from a clergy person. Fallon could not provide one and was eventually fired. Fallon v. Mercy Catholic Med. Ctr. of S. Pa., No. 16-3573 (3rd Cir. Dec. 14, 2017).


The court eventually found that worrying about whether the vaccine might do more harm than good was not a sincerely held religious belief because they did not tie it to fundamental questions of faith; "deep and imponderable matters." The court found that Fallon's beliefs were sincerely held but were medical beliefs, not religious ones.


But what if Fallon had a sincerely held religious belief and what clergy might, in good conscience, write a letter affirming a “faith objection” to the vaccine. For example, a Catholic, Methodist, Presbyterian, Church of Christ, etc. clergy can't singlehandedly decide to hand a person a letter exempting them from required vaccinations. But this is something the denomination could vote on, approve, and then make official church policy. To my knowledge, these denominations have not at the denominational level made a recommendation that members of their church do not take the vaccine.


Independent churches would have an easier time. Since they are an independent body, they can vote as a congregation or a board to enact a policy stating that the COVID vaccine is against their specific beliefs as a religious body and articulate why. The employee would likely need to prove some relationship with the church, either by membership or attendance or other relationships.


Verifying what beliefs are sincerely held presents the challenge of determining the grounds for accommodating them. The court is clear that a letter from a clergy person is not necessarily required to establish a belief is a religious belief. One must not be part of a greater congregation holding their same religious belief for their beliefs about vaccination to be valid.


Regarding appropriate health reasons, certain people are allergic to the organic material used to make vaccines. For this reason, they may be exempted from taking the vaccinations. These exemptions have been commonly held and for many years.


What Is Reasonable Accommodation Without Undue Hardship?

Accommodation without undue hardship requires that the employer is seen to take necessary steps to oblige their employees in cases where their religion is being violated, without necessarily interfering with their work process or costing them more than others.


Human rights legislation attempts to recognize every person's inherent dignity and worth and the need to provide equal rights and opportunities without discrimination. This is the guiding principle for religious accommodation in the workplace and allows some employees to modify or exempt themselves from certain rules.


In 2016, a Massachusetts case (EEOC v. Baystate Medical Center, Inc., d/b/a Baystate Health, Civil Action No. 3:16-cv-30086) held that a hospital violated an employee's rights when she refused a flu vaccine and the only accommodation was for her to have to wear a mask the entire time she was at work. The employee was a recruiter, and people speaking with her claimed they could not hear her when in conversations and interviews.


It is interesting how wearing a mask was considered to be intrusive and cumbersome barely five years ago, so much so that it was deemed not sufficient accommodation.


"Federal law requires employers to fairly balance an employee's right to practice his or her religion and the operation of the business," said Jeffrey Burstein, regional attorney for EEOC's New York District Office. "For an accommodation to be meaningful under Title VII, it both must respect the employee's religious beliefs and permit her to do her job effectively."


What does this imply in 2021?


In 2016, wearing masks in a job where you talked to people for a living was too intrusive to be a reasonable accommodation for not taking the vaccine. Now, however, it is the general policy in public. Would the employer need to give remote work arrangements if these fit the employee's responsibilities? What would be a reasonable accommodation if their work requires feet on the ground or physical business?


What does it mean to provide accommodations unless undue hardship – Additional PPP? Work from Home? Undue hardship is determined on a case-by-case basis, but an employee can be dismissed from employment if the employer finds they cannot provide accommodation in the case of undue hardship.


Can I Require My Employees To Get A Covid-19 Vaccine?

In classic lawyer fashion – it depends! This is a changing, fluid issue. The employer must make reasonable accommodations for employees with health and religious reasons for not taking the vaccine.


In March of 2020, the U.S. Equal Employment Opportunity Commission (EEOC) determined that the COVID-19 pandemic meets the definition of a "direct threat" under the ADA. The ADA defines a "direct threat" as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

This guidance allows employers to intrude more into the employees' personal lives. An employer can ask if you have been out of state, take your temperature before entering the workplace, ask questions about symptoms, and send you home for medical reasons.


When this guidance was published, there was no vaccine. We expect additional clarifications, but for now, employees can be required to take a vaccine unless they have a health or religious reason to refuse. Acceptable health reasons for not taking the vaccine are limited to allergies to ingredients in the vaccine. Religious reasons are beliefs tied to questions of one's foundational faith instead of beliefs about the effectiveness and potential harm taken by a medical act.


Should Employers Mandate All Employees Get The Covid-19 Vaccine?

An employer can mandate all employees to take the vaccine but is this necessary and without repercussions to the workplace?


While it might seem like the best option, being perhaps the safest course of action for people in the workplace, it might not exactly be the most advisable thing to do just yet.


First of all, not all employees qualify to get the vaccine. Chances are your employees are not in the high-risk group of people who need to get the vaccine as much as possible. These would be seniors of at least 65 years old with greater possibilities of having a high-risk medical condition. If your employees are between 16 and 64, they're most likely not high risk.

It's also worth considering that COVID-19 vaccines are a relatively novel medical innovation, one which many people are not ready to accept without doubts or questions. Some of these questions and concerns regarding what exactly the vaccine does and its effectiveness are genuine. Does it stop and prevent COVID-19, or does it just reduce the symptoms?


You can expect that some of your employees are anxious about it. Vaccines have had side effects in the past. Making a person choose between taking a vaccine they don't want to take and keeping their job is not a great way to motivate a workforce.


Making vaccinations a mandatory task for your employees might cause future legal problems for your company. You don't want to have a lawsuit while trying to ensure your workplace's safety. The lawsuits may cost you a lot, especially if the court decides those mandatory vaccinations aren't necessary for your particular place of work. Warehouse employees who collectively claim they do not want to or need to take the vaccine may have rights under the National Labor Relations Act for collective action.


My recommendation for any local employer who is not in the front-line medical field or staffing first responders is to develop a voluntary program for immunization with education and support. You may also offer small financial incentives or give the employee a half-day paid off each time they need to take the vaccine. Give incentives and find ways to help employees boost their immune systems to combat the deadly effects of COVID-19. Help tip the scales to motivate people who are on the fence about the vaccine.


Trust and respect those who are strongly against taking the vaccine right now. It takes time for people to process these types of disruptive decisions. And currently, there is not enough vaccine for even those who want to take it. So, there is time to work with people who are currently opposed to taking it.


The vaccine is designed to lessen symptoms. As we move toward herd immunity as a nation (assuming there are not radically different emerging strains), we will see less sickness and death among those who get COVID. It will not prevent COVID, and in the end, we want people to get a weak case of COVID, just like other previous vaccines, so our bodies know how to fight it.


Forcing employees to get the vaccine rather than helping them see why they should get the vaccine is a bad policy that will hurt employers and employees, and our community in the long run.




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