By Leader Contributor Isaac Miller, COO & Legal Counsel at MKJ Marketing
Editor’s Note: Isaac currently serves as Legal Counsel for MKJ Marketing and consults with funeral homes on best practices for risk management and business strategy. Prior to this, Isaac represented plaintiffs in nationwide class actions against numerous Fortune 500 companies and was involved in the largest consumer class action settlement in U.S. history.
As COVID-19 vaccines become more widely available, many employers are asking if they can require employees to get vaccinated — and what they can do if workers refuse.
The Equal Employment Opportunity Commission (EEOC) recently weighed in, issuing new guidance that answers some workplace vaccination questions.
The short answer is that funeral homes can likely require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws. Additionally, because the COVID-19 vaccine was approved under the FDA’s “emergency use authorization,” rather than receiving full-fledged FDA approval, it may be treated differently by the courts than prior mandatory vaccination programs. In other words, like any good legal issue, it’s complicated.
Disability Accommodations Under the ADA
Under the ADA, an employer can maintain a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This provision, according to the recent EEOC guidance, allows for a mandatory COVID-19 vaccination policy.
So how should the employer respond if an employee indicates he or she cannot receive the COVID-19 vaccine because of a disability? In that case, the employer must determine if the unvaccinated employee presents a “direct threat.” This is a multi-factor determination, but it hinges on whether the employee will expose others to the virus at the worksite.
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must then consider whether a reasonable accommodation can be made. This includes allowing the employee to work remotely or take a leave of absence. If there is no reasonable accommodation that would reduce the threat to an acceptable level, then the employee may be excluded from the workplace.
Most importantly though, exclusion from the workplace does not mean the employee can automatically be terminated. Before any termination occurs, the employer needs to determine if any other rights apply under the EEOC or other federal, state, and local rules.
An employee may also need to be excused from a mandatory COVID-19 vaccination policy on religious grounds. Under Title VII, an employer must accommodate an employee’s sincerely held religious belief, practice, or observance, unless doing so would cause an undue hardship on the business. Based on past cases, “undue hardship” occurs where an accommodation has more than a “de minimis,” or very small, cost to the employer.
In the case of a religious accommodation, there should be an interactive process with the employee. Ordinarily, the employer may ask the employee to identify the sincerely held religious belief upon which he or she is relying and why or how that religious belief is negatively impacted by the vaccine.
If an employee refuses to get vaccinated for COVID-19 due to their religious beliefs and there is no reasonable accommodation available, then the employee may be excluded from work. Again, caution is warranted before terminating the employee, as other federal and state laws likely apply.
Mandatory Vaccination Policies for “Essential Businesses”
You may be thinking — my firm has been deemed an “essential business,” so doesn’t that mean I can require all of my employees to get vaccinated? The answer is no — not automatically.
Having an essential business status does not excuse an employer from complying with the ADA and Title VII when considering mandatory COVID-19 vaccination policies.
As With Other Workplace Policies, Communication Is Key
The past year has been extremely challenging for many firms, with owners and staff stretched beyond the breaking point and feeling more overwhelmed with each passing day. The last thing anyone wants is a showdown — or worse, a potential lawsuit — with an employee over the COVID-19 vaccination. So, how can you prevent this from happening?
If you intend to issue a mandatory vaccination policy, then you need to put it in writing. Give your staff time to review it and encourage them to come to you first if they have concerns. If a staff member raises an objection, listen to what they have to say and see if there is any way to reach common ground. Don’t just dismiss them — if they refuse to comply and have no legal exemption, then you will be put in the difficult position of having to terminate them. You can’t enforce the policy for certain employees and exempt others because that puts you at risk for a discrimination lawsuit.
Along with the mandatory policy, you can take steps to incentivize employees to get the vaccine. For instance, the cost may be a consideration, causing some employees to hesitate, so you could offer to cover the costs of the vaccine. Other employees may be concerned that they will get sick from the vaccine. To address this, you could offer paid time off for employees to get the vaccine and recover from any potential side effects. Communicating factual information about the vaccines to employees, including their safety and efficacy, and citing medical experts and organizations like the CDC can help convince employees to get the vaccine.
Given the important nuances of these issues and the complexity of federal and state employment laws, I would strongly encourage you to consult with your legal counsel prior to instituting a mandatory COVID-19 vaccination policy.