What HR needs to know now about COVID-19 vaccine policy

As a COVID-19 vaccine appears closer to reality, this is the time for employers to weigh the options and make decisions about vaccination policies.
By: | November 9, 2020 • 6 min read

As Pfizer moved closer to a COVID-19 vaccine with news this morning that its early trials are widely effective, employers and employees alike remain hungry for a return to “normal.” Yet, until a vaccine is widely available, many businesses continue to manage a largely remote workforce. The hope is that a potential COVID-19 vaccination will usher employees back to work.

Andrea M. Kirshenbaum

But recent polls have shown continued skepticism surrounding a potential COVID-19 vaccination. A September poll by the Pew Research Center found that 49% of respondents “definitely or probably would not get vaccinated at this time.” Another study undertaken by the peer-reviewed medical journal The Lancet found that only 50%-59.9% of U.S. respondents agree that “vaccines are safe.”

For employers depending on widespread COVID-19 vaccination as a precursor to a return to pre-pandemic, on-site operations, the potential resistance to a vaccine presents significant challenges.

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While only time (and data) will tell the safety and effectiveness of any potential COVID-19 vaccine, employers should be assessing whether they should mandate a COVID-19 vaccine (with exemptions for religion and disability) as part of a larger COVID-19 mitigation strategy.

Assuming that employers can get access to the vaccine, they have several options.

  • Follow the typical influenza vaccination approach of many non-healthcare employers, i.e., offer the vaccine to employees free of charge on a strictly voluntary basis. In a Pandemic Preparedness guidance document issued by the EEOC in 2009 during the H1N1 virus (and updated in response to the COVID-19 pandemic in March of this year), this is the approach suggested: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”
  • Create a “hybrid” approach, that is, mandate the vaccine for certain employees (for example, those who cannot work remotely or cannot fully socially distance in the workplace).
  • Mandate the vaccine for all employees who do not qualify for an exemption due to religion or disability.

Assuming that a safe and effective vaccine will become available in the next few months, now is the time for employers to weigh the various options and decide which approach they would follow.

The Foundation of a Program

If employers mandate the vaccine for any category of employee, they need to create an exemption process for religion and disability. Since at this point, we do not know the components of any future FDA-approved vaccine or potential medical contraindications, the disability exemption protocol will need to take place after approval.

Employers can, however, develop their religious exemption process now and evaluate all requests in advance of FDA approval. That way, if the vaccine becomes available, employers will be poised to immunize their workforce following the disability exemption process.

Employers looking to put in place a COVID-19 vaccine program need look no further than to the case law and guidance developed in the influenza vaccination context to guide their path.

The Legal Framework

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of religion, among other protected categories, and requires employers to reasonably accommodate religious observance and practice, absent undue hardship. Under Supreme Court precedent, employers can establish “undue hardship” under Title VII if they can demonstrate that the accommodation would require “more than a de minimis cost.”

The Third Circuit’s seminal decision in Fallon v. Mercy Catholic Medical Center provides employers with a road map to implement a COVID-19 vaccination program.

The hospital at issue in Fallon mandated the influenza vaccination absent a religious or medical exemption. As part of the exemption process, Fallon was asked to explain his views so that the hospital could assess whether his refusal to receive the influenza vaccination was “because of … religion” and therefore protected under Title VII (and state law). In support of his exemption request, Fallon submitted a detailed essay describing his views. After reviewing his essay, the hospital concluded that Fallon’s views were not religious, and he was terminated because he refused to receive the influenza vaccination.

To evaluate Fallon’s claim, the Third Circuit set out a three-part test defining religion and ultimately ruled that Fallon failed on all three fronts: His beliefs did not address fundamental and ultimate questions having to do with deep and imponderable matters and were not comprehensive in nature. The Third Circuit also held that Fallon’s views were not manifested in formal services and rituals associated with traditional religions.

See also: 4 tips to encourage employees to get a flu shot

While the Third Circuit reasoned that “certain anti-vaccination beliefs are not religious,” it recognized that anti-vaccination beliefs can be protected if they are part of “a broader religious faith” and offered Christian Scientists as an example. In its opinion, the Third Circuit also made clear that employers cannot require a letter from a member of the clergy in order to consider an employee’s request for religious exemption. In addition, the Third Circuit affirmed that, consistent with Supreme Court precedent and EEOC guidance, non-theistic beliefs can satisfy Title VII’s requirements.

The EEOC also has offered guidance both generally and in the influenza vaccination context that employers should be aware of as they enact COVID-19 vaccination programs. The EEOC’s Compliance Manual states that “the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.” However, in a 2012 Informal Discussion Letter regarding the influenza vaccination, the EEOC indicated that, “[i]t is unlikely that ‘religious’ beliefs would be held to incorporate secular philosophical opposition to vaccination.”

In its Compliance Manual, the EEOC also has taken the position that an employee can have a valid exemption even though “no religious group espouses” the beliefs of the employee and even if the religious group to which the employee belongs does not accept that belief.

Applying the Framework

Armed with the Third Circuit’s three-part test and EEOC guidance, employers should evaluate the religious exemption requests of employees. If an employer finds that an employee’s exemption request was because of his or her religion, employers then need to consider potential reasonable accommodations. Employers should be guided by science and data in evaluating these requests while also keeping in mind the particular workplace and the role and work environment of the specific employee.

Related: Why HR needs to watch out for ‘immunity discrimination’

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Employers also will need to assess whether a potential accommodation poses an undue hardship on the employer and its operations. In the influenza vaccination context, the EEOC offered informal guidance as to the nature and scope of “undue hardship,” stating that, “[f]acts relevant to undue hardship … would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control and potentially the number of employees who actually request accommodation.”

Creating a COVID-19 vaccination program certainly is not without legal risk. Yet the question that employers should be asking themselves is the same that a mentor of mine used to ask: Compared to what? While employers certainly may have some level of discomfort in being the arbiter of whether an employee’s views are religious or not, the question is: What is the alternative? Now is the time for employers to begin asking and answering these questions. And if the decision is to move forward with a COVID-19 vaccination program, employers should begin creating and implementing that program now.

Andrea M. Kirshenbaum is a principal in Post & Schell, P.C.’s Employment & Employee Relations Practice Group and chair of the firm’s Wage and Hour Practice Group. She defends employers nationally in federal and state court litigation involving all major employment statutes, represents them in related government investigations and counsels them proactively on compliance with these statutes. She can be reached at akirshenbaum@postschell.com.