As hospitals, large healthcare providers and employers in other industries prepare for the vaccine rollout, many will institute mandatory vaccination policies for their workforce. Employers who implement mandatory vaccination policies should be aware of the legal challenges arising from the enforcement of such policies and should implement best practices to minimize the risk of claims. But at the end of the day, this is a question of balancing the rights of co-workers to a safe workplace and the employee’s legal rights to refuse to be vaccinated.
Employment lawsuits filed for refusal to comply with a mandatory vaccination policy typically arise as religious discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII) or disability discrimination claims under the Americans with Disabilities Act (ADA), or their state law equivalents. This article will discuss religious discrimination and accommodation issues in the context of mandatory employee vaccination programs, while our next part will discuss disability discrimination and accommodation issues.
Religious Discrimination Claims Based on Vaccination RefusalThe definition of the word “religion” is often of a focus of Title VII religious discrimination claims. In Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981), the Third Circuit Court of Appeals defined the term “religion” as follows:
“First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.”
Some employees object to vaccination for reasons that are religious in nature. Title VII makes it an unlawful employment practice for an employer to discharge or discriminate against an employee because of such individual’s religion. The term religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” To establish a claim of religious discrimination under Title VII, the employee must show that (1) they held a sincere religious belief that conflicted with a job requirement; (2) they informed their employer of the conflict; and (3) they were disciplined for failing to comply with the conflicting requirement. Employers have a statutory obligation under Title VII to make reasonable accommodations for the religious observances of employees[1], but are not required to incur undue hardship.
The Equal Employment Opportunity Commission (EEOC) is currently seeking public input on a proposed updated Compliance Manual on Religious Discrimination. The proposed updated Compliance Manual addresses various aspects of religious discrimination and accommodation that will likely impact employer vaccination policies. The public is able to review the updates and provide comments on the proposal until December 17, 2020.
Per EEOC guidance, “Pandemic Preparedness in the Workplace,” employers must take into account that employees may be entitled to an exemption from a mandatory vaccination requirement based on an employee’s sincerely-held religious belief, practice or observance that prevents them from taking the vaccine:
“[U]nder Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely-held religious belief, practice or observance prevents them from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”
The EEOC takes the position that employers “should consider simply encouraging employees to get the influenza vaccine, rather than requiring them to take it.” In the context of healthcare providers and other employers providing care to medically vulnerable populations, mandatory vaccination programs are generally recognized as acceptable. Outside of the healthcare setting, however, mandatory vaccination programs have been less common.
Personal Preferences Are Not SufficientEmployees who object to mandatory vaccination programs on the basis of personal preferences against vaccination have not been successful in...
