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Can Employers Mandate COVID-19 Vaccinations? By Matthew Bernstein, Esq.

COVID-19 Updates, In The News

As we enter 2021 having (optimistically) finally reached a turning point in the COVID-19 pandemic with the approval and distribution of at least two viable vaccines, a popular question being asked is whether employers can mandate that their employees be vaccinated for COVID-19. From a purely legal standpoint, the answer is (perhaps stereotypically) not a definitive “yes” or “no.” The answer likely depends on the field or type of employment and whether one of two possible exceptions exist for the specific employee.

Under the Americans with Disabilities Act (“ADA”), an employer may require job applicants to undergo a “medical examination” once an offer of employment is made and before the applicant begins his or her employment duties.1 Likewise, medical examinations of current employees have been upheld under the ADA when the examinations relate to workplace conditions, as opposed to examinations that are unnecessarily broad and intrusive.2 Accordingly, to be a valid medical examination, it must be: (1) job-related; (2) consistent with business necessity or justified by a direct threat; and (3) be no broader or more intrusive than necessary.3 Notably, the examination need not be the only way to achieve a business necessity, but it must be a reasonably effective method to achieve the employer’s goals.4

Importantly, vaccines are considered “medical examinations” under the ADA and, therefore, workplace immunization requirements have been determined to be valid in certain contexts. For instance, healthcare systems across the U.S. have passed laws requiring their employees to be immunized against rubella,5 hepatitis B,6 influenza,7 pertussis,8 varicella,9 and/or H1N110. These immunization interests are contrasted from unnecessary, broad, and/or intrusive requirements, for which courts have categorized as unlawful medical examinations (such as one employer’s random alcohol breath testing policy,11 another employer’s requirement that its employees report medical conditions that do not affect their employment even if they are nonetheless fit for duty,12 or when the examination probes into medical conditions unrelated to why the examination was permissibly sought in the first place).13 Given the severe and dangerous health consequences of COVID-19, there is no reason to think that healthcare system employers could not seek to implement similar requirements for the COVID-19 vaccine.

Assuming an employer can establish that mandatory COVID-19 immunizations for its employees would satisfy the ADA’s definition of a valid medical examination, the next step of the analysis would be to determine whether an employee may be exempted from such immunization requirement. To that end, there are two potential exemptions: (1) religion; and (2) medical disability.

First, as to the religion exemption, under Title VII of the Civil Rights Act of 1964 (“Title VII”), which applies to local, state, and federal governments, as well as private employers with 15 or more employees, a person cannot be discriminated against in the workplace for a variety of characteristics, including religion. To qualify for a religious exemption to an employer-mandated COVID-19 vaccine under Title VII, an employee would have to demonstrate that they have a sincerely held religious belief that prevents them from being vaccinated.14 It would not be enough for the employee to show a mere opposition to vaccination; such opposition must actually be a sincerely held religious belief.15 If an employee notified his or her employer that their sincerely held religious belief conflicts with a COVID-19 vaccine mandate, then the employer would be obligated to make a reasonable accommodation for that employee. However, if such an accommodation would result in an undue hardship to the employer, then the accommodation can be rejected.16 An undue hardship exists when accommodating the religious observance of the employee would create more than a de minimis cost to the employer or employee’s coworkers.17

As to the second exemption for medical disability, it is almost the same analysis: if the employee has a medical condition or disability preventing him or her from complying with the vaccine mandate, the employer would be required by the ADA to provide a “reasonable accommodation” to that employee unless such accommodation would place an undue hardship on the employer. However, the accommodation for medical disability can also be denied if the employee, by not complying with the mandate, would pose a “direct threat” to the health and safety of others.18 In other words, if the employer can show that an unvaccinated worker would present direct danger to other employees or clients/patients, that might be sufficient to overcome a request for an accommodation.

In summary, to answer the subject question succinctly – yes, an employer can likely mandate COVID-19 immunization if doing so is necessary for or is related to the employer’s business and is narrowly tailored. However, an employee can request a reasonable accommodation to such a mandate for religious or medical reasons so long as granting the accommodation would not place an undue hardship on their employer or pose a direct threat to their coworkers or others.

For additional information, please contact Matthew Bernstein at mbernstein@florida-law.com.

  1. 29 C.F.R. § 1630.14.
  2. Burger v. New York City Police Dep’t, 304 F. Supp. 3d 360 (S.D.N.Y. 2018); Port Auth. Police Benevolent Ass’n, Inc. v. Port Auth. of New York & New Jersey, 283 F. Supp. 3d 72 (S.D.N.Y. 2017).
  3. See Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999).
  4. Thomas v. Corwin, 483 F.3d 516 (8th Cir. 2007).
  5. Hustvet v. Allina Health Sys., 910 F.3d 399 (8th Cir. 2018).
  6. Alaska Admin. Code tit. 7, §12.650, §12.600, §12.990; 22 M.R.S.A. § 802; 22 § 801; Code Me. R. tit. 10-144 Ch. 264, §7, Ch. 264 § 2, Ch. 264§ 3, Ch. 264 § 1; Okla. Admin. Code 310:667-5-4, 310:667-1-2; W. Va. Code St. R. 64-82-8; 64-82-3.
  7. CAL. CODE REGS. tit. 8, §§ 5199 (h)(5)(D)(10), (j)(1)(B)(2), (a)(1)(A); 6 COLO. CODE REGS. 1011-1:II-10.5, 10.6, 10.7, 10.8; 1011-1:XX-2, 10.12; Colo. Rev. Stat. Ann. § 25-3-101; ILL. ADM. CODE tit. 77, §§ 956.30; 956 App. A; 956.10; 105 MASS. CODE REGS. 140.150, 140.020; NEV. ADMIN. CODE § 439.935; Nev. Rev. Stat. Ann. §§ 439.805, 449.013, 449.019, 449.0155; N.H. CODE ADMIN. R. He-P 309.02(d), 309.08(c), 309.01, 812.03(i), 812.20, 812.03(i); N.H. REV. STAT. ANN. § 151:33(IIa), (IIb) N N.H. Code Admin. R. He-Hea 1902.01; 10 N.Y. COMP. CODES R. & REGS. 2.59, 751.6, 751.1; N.Y. Pub. Health Law § 2801(1); OR. ADMIN. R. 333-018-0127, 333-018-0100(2), (13); Or. Rev. Stat. § 442.015; 31 R.I. CODE R. 1-22:3.5.4, 1-22:5.0; 1-22:1.6, 1-22:2.1; S.C. CODE ANN REGS. 61-91 §§ 1502, 101(E); TENN. COMP. R. & REGS. 1200-08-24-.06, 1200-08-24-.01, 1200-08-35-.06, 1200-08-35-.01, 1200-08-32-.04, 1200-08-32-.01, 1200-08-10-.06, 1200-08-10-.04, 1200-08-10-.01, 1200-08-30-.05, 1200-08-30-.01.
  8. Cal. Code Regs. tit. 8, § 5199; Neb. Rev. Stat. Ann. § 71-467; 216 R.I. Code R. 20-15-7.
  9. Cal. Code Regs. tit. 8, § 5199; 10-144 Me. Code R. Ch. 264, §§ 2, 3, 4, 1 (D); Me. Rev. Stat. Ann. tit. 22, § 1843; Okla. Admin. Code §§ 310:67-5-4, 310:667-1-2; 31 R.I. Code R. 1-22:3.0, 1-22:5.0, 1.22:1.0, 1-22:2.0.
  10. On 11/09/2009, the Occupational Safety and Health Administration (“OSHA”) released a “standard interpretation” in which OSHA took the position that an employer may require employees to take vaccines against the seasonal flu and H1N1 flu; provided, however, that an exemption was recognized for an employee who had a “reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine).”
  11. E.E.O.C. v. U.S. Steel Corp., No. CIV.A. 10-1284, 2013 WL 625315 (W.D. Pa. Feb. 20, 2013).
  12. Pennsylvania State Troopers Ass’n v. Miller, 621 F. Supp. 2d 246 (M.D. Pa. 2008), citing Thomas v. Corwin, 483 F.3d 516 (8th Cir. 2007).
  13. See EEOC Notice No. 915.002, 7/27/00, “Enforcement Guidance on Disability-Related Inquiries and Medical Exams of Employees under the ADA”.
  14. Brown v. Children’s Hosp. of Philadelphia, 794 F. App’x 226 (3d Cir. 2020).
  15. Id. at 227.
  16. Id.
  17. Jacobs v. Scotland Mfg., Inc., No. 1:10CV814, 2012 WL 2366446 (M.D.N.C. June 21, 2012), citing Ansonia Bd. of Educ. v.Philbrook, 479 U.S. 60 (1986).
  18. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).