By all accounts, the availability of a vaccine for COVID-19 is a matter of when, not if. According to the World Health Organization, as of August 25, 2020, 173 potential vaccines are currently being developed in labs across the world, 31 of which have advanced to clinical stage testing on humans. Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year or early 2021.

Naturally, employers are beginning to ask the question: “Can we require employees to be vaccinated against COVID-19?” In general, the answer is yes. Employers may implement mandatory vaccination programs, subject to limited exemptions. Although the issue is only now coming to the forefront of our national conscience, mandatory vaccinations in the workplace are not new, and are particularly prevalent among healthcare providers. Some variability exists under federal law and among federal agencies, but for the most part, mandatory programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA).

Religious Accommodations Under Title VII

Under Title VII, a “sincerely held religious belief” is a prerequisite to establishing an entitlement to a religious accommodation; personal or ethical objections are typically insufficient. Some jurisdictions, however, interpret “religious belief” more broadly than others. In Chenzira v. Cincinnati Children’s Hospital Medical Center, an interesting case that is somewhat of an outlier, the U.S. District Court for the Southern District of Ohio denied a motion to dismiss the employee’s challenge to a mandatory flu vaccination because the court found “it plausible that [p]laintiff could subscribe to veganism with a sincerity equating that of traditional religious views.” By comparison, in Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of a Title VII claim, finding that an employee’s opposition to vaccines was a personal belief that did not “occupy a place in his life similar to that occupied by a more traditional faith.” Personal anti-vaccination positions generally will not support the legal requirement of establishing a sincerely held religious belief in order to obtain an exemption from a mandatory vaccination policy.

Even if an employee can establish a sincerely held religious belief, the employer may deny an accommodation request if it poses an “undue hardship.” The undue hardship analysis for Title VII religious accommodation requests includes consideration of harm to the employer, its employees, and third parties, such as patients. Federal courts are split on whether speculative harm is sufficient to establish an undue hardship, but at least one court—the U.S. District Court for the District of Massachusetts, in Robinson v. Children’s Hospital Boston—has held that exemptions to a mandatory flu vaccine would have posed an undue hardship because allowing one employee to forgo a mandatory vaccination “could have put the health of vulnerable patients at risk.”

Medical Accommodations Under the ADA

Similar to the threshold requirement of establishing a sincerely held religious belief under Title VII, an employee requesting an accommodation under the ADA must establish a covered disability. In the vaccination context, there is a circuit split regarding whether sensitivity to vaccinations constitutes a covered disability. Under a similar set of facts, the U.S. Courts of Appeals for the Eighth and Third Circuits reached opposite conclusions—the Eighth Circuit held that alleged chemical sensitivities and allergies did not constitute a disability under the ADA, while the Third Circuit held that a history of allergies and anxiety related to the possible side effects of a vaccine qualified as an ADA-covered disability.

Assuming an employee requesting an accommodation is covered by the ADA, the undue hardship standard under the ADA is likely harder to demonstrate than the standard under Title VII. Under the standard established by the Supreme Court of the United States in US Airways, Inc. v. Barnett, to establish an undue hardship in the context of mandatory vaccinations, an employer generally “must show special (typically case-specific) circumstances demonstrating undue hardship.” However, employers may be able to circumvent this problem by offering an alternative vaccine that does not contain an ingredient that could trigger an employee’s medical condition (e.g., a vaccine that does not contain any egg, swine, or fetal cell products).

Will a COVID-19 Vaccine Be Treated Differently?

With respect to both Title VII and the ADA, it is difficult to predict how rules surrounding mandatory vaccinations will translate in the COVID-19 pandemic era. Importantly, the existing case law generally deals with employers engaged in direct patient care, where risk to vulnerable patients is a significant factor. When there is no “sick patient” involved, courts may be more inclined to find against mandatory vaccination policies.

Since the onset of the current pandemic, however, the U.S. Equal Employment Opportunity Commission (EEOC) has acknowledged that COVID-19 meets the ADA’s “direct threat standard,” which permits more extensive medical inquiries and controls in the workplace than typically allowed under the ADA. A “direct threat” finding means that having someone with COVID-19 in the workplace poses a “significant risk of substantial harm” to others. Such a finding permits employers to implement medical testing and other screening measures the ADA would usually prohibit. It remains to be seen how the EEOC, which has traditionally been hostile to mandatory vaccination programs, will view a COVID-19 vaccine.

Other federal agencies take a more permissive stance, including recommendations strongly in favor of workplace vaccination policies, especially for industries deemed critical to the economy and national infrastructure. The U.S. Centers for Disease Control and Prevention (CDC) maintains a guidance document on this issue, titled “Roadmap to Implementing Pandemic Influenza Vaccination of Critical Workforce.” The federal Occupational Safety and Health Administration (OSHA) is more likely to defer to employer-mandated vaccinations, although, as the agency explained in 2009, “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death … may be protected under Section 11(c) … whistle blower rights.” Notably, OSHA is actively encouraging its inspectors to get the COVID-19 vaccination when it becomes available.

Once a COVID-19 vaccine is approved, both federal and state authorities are almost certain to issue further guidance and/or regulations governing vaccinations in the workplace. In particular, employers may want to keep an eye on developments at the state level. Any such laws could significantly alter the undue hardship analysis under Title VII and the ADA if they mandate vaccinations to preserve the health and welfare of citizens (or subgroups, based on industry or job duties).  For example, in its Robinson decision, the U.S. District Court for the District of Massachusetts considered a state department of health policy and guidance as support for the undue hardship defense.

What to Expect and How to Prepare

In addition to the legal issues, employers may also want to consider the politicized and polarized nature of the cultural dialogue surrounding prevention of COVID-19 transmission. Imposition of a mandatory COVID-19 vaccine will almost certainly result in a slew of accommodation requests—medical, religious, personal, and ethical—fueled by mistrust of political leaders and the healthcare industry. An August 2020 study found that one-third of Americans would refuse a COVID-19 vaccine, even if one were available. And, if large numbers of people feel the need to be exempt from wearing a mask or face covering(which is significantly less intrusive than receiving a vaccination), then employers likely can expect an equal or greater objection to a new vaccine (which may be viewed as risky and/or ineffective).

As a result, employers may want to take the following steps to prepare in anticipation of an approved vaccine.

• Consider whether a mandatory policy is truly necessary for the business in light of other alternatives, such as remote work, physical distancing, facial coverings, and other CDC-recommended steps to prevent the spread of COVID-19.

• If the company deems a mandatory vaccine policy necessary, it might consider confining the mandate to high-risk locales, departments, and/or worksites where alternative and similarly-effective means of limiting the contagion are not viable.

• Employers that decide to implement a mandatory policy may want to prepare in advance to review and administer numerous requests for accommodations, and create separate exemption request forms and doctor and religious leader certification forms. Potential accommodations may include increased use of personal protective equipment (PPE), modification of duties to remove at-risk activities, temporary or permanent transfers to other positions or work areas, and alternative forms of the vaccine that do not include objectionable ingredients (such as egg, swine, or fetal cell products).

• Some employers may find it useful to impose a vaccination deadline based on CDC recommendations and assigning the responsibilities of monitoring, compliance, and enforcement to a well-trained employee, committee, or department. Employers that impose a deadline may also want to consider preparing to address noncompliance through discipline or other corrective measures.

• Determine if it is possible to provide the vaccinations at no or little cost to the employee and consider making them available on-site at times convenient to employees during their normal working hours.

• Consider evaluating the composition of the workforce and identifying those employees who may belong to a union. Under the National Labor Relations Act, employers with a unionized workforce will likely need to negotiate implementation of a mandatory vaccination program with the union.

• Consider reviewing state workers’ compensation laws and current employer insurance policies. Some employees may have a negative physiological reaction to the vaccine, and any adverse reactions to an employer-mandated vaccine could lead to a workers’ compensation claim. On the other hand, to the extent that a vaccination policy and program is considered part of the employer’s wellness program, the workers’ compensation insurer may provide a discounted premium or other incentives to the employer.

• Because this is a rapidly developing area, employers may find it helpful to monitor new laws, regulations, and guidance from federal and state authorities.

If nothing else, the COVID-19 pandemic has required employers to consistently adapt to a rapidly changing environment. A mandatory vaccination policy may or may not be right for one’s workplace, but as employers explore their options they may want to proceed with caution, remain nimble, and stay prepared.