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Mandating the COVID-19 Vaccine: Considerations for Health Care Employers

on Tuesday, 7 September 2021 in Health Law Alert: Erin E. Busch, Editor

Health care employers across the United States that have not yet mandated the COVID-19 vaccine for their employees are currently considering it.  Undoubtedly, whether to mandate vaccinations is now one of the most pressing employment law issues facing the health care industry.

Some health care employers have the “luxury” of having the decision made for them by laws in certain states, counties, and cities.  It is a luxury because they can inform their employees that the vaccination mandate is being imposed on them by law.  Additionally, because those employers’ competitors are affected by the same law, employees who wish to remain unvaccinated cannot easily “jump ship” and go a competitor that does not require vaccination.

Even if not mandated by law, many health care employers have decided to mandate the COVID-19 vaccine for a variety of compelling reasons.  Amongst those are patient and employee heath, a desire to be the “leader” in the community regarding public health issues, or a simple desire to “do the right thing.”

No matter the reason behind a vaccine mandate, there will undoubtedly be employees who claim that they cannot be vaccinated due to either religious or medical reasons.  By asking to remain unvaccinated, the law considers these employees to have requested a religious or medical/disability “accommodation” that must be considered by their employer.  But an employer’s legal obligation to consider an employee’s request to remain unvaccinated for either of these reasons does not mean that an accommodation must be granted, or that if granted it needs to be done so unconditionally.

The legal standards for an employer to grant or deny an employee’s religious or medical accommodation request flow from either Title VII of the 1964 Civil Rights Act (for religion) or the Americans with Disabilities Act (“ADA”) (for medical/disability).  Importantly, the accommodation standard under each of these federal laws differs.  There may also be applicable state and/or local laws that an employer will need to consider.  This article, however, focuses solely an employer’s accommodation obligations under Title VII and the ADA.

Religious Belief, Practice, or Observance.  According to the U.S. Equal Employment Opportunity Commission (“EEOC”), “social, political, or economic philosophies, or personal preferences, are not ‘religious’ beliefs under Title VII.”  Moreover, the EEOC has noted that if an employee asserts a sincerely held religious belief, practice, or observance and the employer reasonably doubts that assertion, then the employer can request information from the employee to verify the sincerity of the asserted belief, practice, or observance.  According to EEOC guidance issued on January 15, 2021:

“That information need not, however, take any specific form.  For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary.  Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is requested, it does not have to come from a clergy member or fellow congregant, but rather could be provided by others who are aware of the employee’s religious practice or belief.

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.”

Frankly, the above “guidance” is no guidance at all; rather, it creates “confusion” for employers.  Essentially, it says that employers can ask for information – but not too much or else it could be deemed religious harassment.  It may or may not be proper for an employer to require third-party verification.  And even if third-party verification is required, the employee does not need to provide anything from a religious or spiritual leader because the EEOC says the employee can validly have “idiosyncratic” beliefs contrary to those of his or her religious or spiritual leaders.

In light of all of this, the safest approach for an employer is to not dispute the sincerity of the employee’s alleged religious belief, practice, or observance, but to instead consider whether granting the employee’s request to remain unvaccinated poses an undue hardship.  In the context of religious accommodations, it does not take much for a requested religious accommodation to be deemed to pose an undue hardship on the employer.

“Undue hardship” in the religious accommodation context includes requests that would require the employer “to bear more than a de minimis [minimal] cost.”  Factors to be considered include “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.”  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business.  For example, courts have found undue hardship where the requested accommodation would diminish efficiency in other jobs, infringe on other employees’ job rights or benefits, impair workplace safety and/or health, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  Whether the proposed accommodation conflicts with another law can also be considered.

Because of the definition of undue hardship, most employees’ religious requests to remain unvaccinated can be denied simply because they compromise workplace safety and health.  Likewise, unvaccinated employees are far more likely to be absent from work due to being infected with COVID-19, thereby placing a greater burden on their vaccinated coworkers.

When might an employee’s request to remain unvaccinated not pose an undue hardship on a health care employer?  Perhaps if the employee can effectively perform their job remotely, or they have no contact with patients or coworkers.  Perhaps also (at least temporarily) those employees who had the virus (and recovered) within the last three months and have sufficient antibodies.

Medical/Disability.  If an employee expresses a medical objection to a COVID-19 vaccination, then the employer should explore with the employee the basis for the objection.  Generally speaking, unless the objection is based upon one of the Centers for Disease Control and Prevention’s (“CDC”) identified contraindications to the vaccine, then the exemption request may be denied.  If the objection is based upon a contraindication, then the employee likely has an ADA-covered disability.  If so, the employer will have a significant burden to establish undue hardship and deny the employee’s request to remain unvaccinated.

Generally, employers should equate the term “undue hardship” in the ADA context to something that is so severe it may put their organization out of business.  While that may be true if unvaccinated health care employees spread the virus and infect a significant number or patients and coworkers, the ADA gives employers a far better potential option to deal with unvaccinated employees.

Under the ADA, an employer may legally refuse to hire applicants, or discharge employees, if the individuals pose a “direct threat” to themselves or others.  According to the EEOC, a “direct threat” means “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.”  In this context, the employer is not initially looking at accommodating an employee’s request to remain unvaccinated, but instead, whether the employee presents a direct health or safety threat by remaining unvaccinated.

According to the EEOC, to determine whether an unvaccinated employee poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job.  The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  In the COVID19 context, the EEOC recently stated:

“The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.  Such medical knowledge may include, for example, the level of community spread at the time of the assessment.  Statements from the CDC provide an important source of current medical knowledge about COVID-19 . . .  Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.”

Because an employer’s direct threat determination must be based on a medical judgment that relies on the most current medical knowledge about COVID-19, it is imperative that an employer consult with a medical expert (e.g., an infectious disease specialist) who considers the factors mentioned above by the EEOC and how they apply to the employee who has asked to remain unvaccinated.  If the assessment demonstrates that the employee will pose a direct threat, the analysis is not complete.  At that point, according to the EEOC:

“The employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.  Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.”

If no reasonable accommodation exists that would eliminate (or reduce to an acceptable level) the direct threat presented by the unvaccinated employee, and assuming there is no vacant position that the employee is currently qualified to perform in a different workspace, then the employer would be able to legitimately terminate the individual’s employment.

Thoughts about “Soft” Mandates.  On July 29, 2021, President Biden announced that federal workers and contractors either need to be vaccinated or else wear a face mask, socially distance, and be subjected to weekly (or more frequent) testing for the virus.  This approach has been referred to as a “soft” mandate.

Should an employer consider implementing a soft mandate?  Or at least a soft mandate for those employees who ask to forego vaccination for religious or medical reasons?  No doubt, a soft mandate will help avoid the conflict that otherwise may arise when dealing with – and denying – an employee’s accommodation under a “hard” mandate.

Although an employer may use a soft mandate, it is not without costs to the employer and it by no means a perfect solution.  Consider the following:

  • Compensable Time. Does an employee need to be paid for the time spent being tested for COVID-19 pursuant to a soft mandate?  The short answer is “yes” because the employer is requiring test primarily for its benefit (e., knowing that is does not have an infected individual in its workplace).  Generally speaking, whenever an employee is engaged to perform services that benefit his or her employer, the time spent performing those services is considered compensable time.  For employees not exempt from the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime provisions, that means the employee must be paid while being tested for COVID-19.  State laws may impose additional requirements.  And depending on the test location and when the test occurs, the employee’s travel time to and from the testing facility may also be compensable.  Of course, all of this additional compensable time counts toward determining whether the non-exempt employee worked more than 40 hours in the workweek and is therefore entitled to overtime compensation.
  • Cost of the Test. Depending upon the type of COVID-19 test administered and whether the individual being tested has no symptoms, the test may not be free.  If not, then who pays for the test, the employee or the employer?  Assuming there is a charge for the test, the answer typically depends upon state law.  In many states, employers are required to pay for expenses incurred at the direction and for the benefit of their employer.  And even if there is no applicable state law, a low-wage earner who pays for required weekly testing may end up netting less than minimum wage for the week – which then becomes an FLSA problem for the employer.
  • Is a Weekly Test Really Valuable? Although an employee may test negative on any given day, the employee may become infected with the virus later that day and then remain in the workplace for an entire week before being retested – thereby spreading the virus to others.  The test may also produce a false positive or false negative result.  And which type of test should be given?  According to the EEOC, an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries because, according to the CDC, an antibody test may not reliably detect antibodies in someone who is currently infected.  Likewise, an employee may test positive for some time period after no longer being contagious.

If a health care employer is considering a “soft” vaccine mandate, then it likely has determined that COVID-19 is a clear and present danger.  In light of that, should it implement anything other than a “hard” vaccine mandate, especially the considering cost and reliability issues?  Good question – and just one of the many facing health care employers during this extremely challenging time.

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