This week, the EEOC approved employers requiring employees to receive COVID-19 vaccination, subject to limitations. How limiting are the limitations? Case law applying them is thin, but generally treats them as narrow. In fact, an argument is taking shape that employers actually have a duty to require the vaccination of certain employees. Constitutional and additional statutory limitations arise if government mandates the vaccination and when government is the employer. Requiring proof of vaccination is preferable to private employers themselves vaccinating, although employers that vaccinate may be entitled to take advantage of state and PREP Act immunities.
Limitations on a Mandate
The two limitations on mandating vaccines that the EEOC has focused upon are these: (1) if the employee has a disability that prevents the employee from taking the vaccine the employee may be entitled to an exemption from mandatory vaccination or (2) if an employer receives notice that an employee’s sincerely-held religious belief, practice or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an “undue hardship,” which is defined as more than a de minimis cost to the operation of the employer’s business.
Americans with Disabilities Act (ADA)
The ADA makes it unlawful for a covered employer to discriminate against a qualified individual on the basis of disability with regard to hiring, discharge and other terms and conditions of employment. The ADA also requires employers to provide reasonable accommodations to disabled employees to allow them to perform their essential job functions unless doing so what constitute an undue burden on the employer. The ADA defines a disability as (1) a physical or mental impairment that substantially limits one or more major life activities of such individual, (2) a record of such impairment, or (3) being regarded as having such an impairment.[1]
To make out a prima facie case under the ADA, the plaintiff typically must show (1) her employer is subject to the ADA; (2) the plaintiff was disabled within the meaning of the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation, and (4) the plaintiff suffered adverse employment action because of her disability. Many states have laws similar to the ADA that are usually interpreted consistent with it. Plaintiffs who have resisted mandatory vaccination have not fared well under this standard.
For example, an independent living skills specialist in Hustvet v. Allina Health Sys., 910 F. 3d 399 (8th Cir. 2018), a registered nurse in Chmura v. Monongalia Health Sys., No. 1:17cv222, 2019 WL 3767469 (N.D. W.V. Aug. 9, 2019), and a medical assistant in Eubanks v. Mercy Med. Ctr., Inc., No. WDQ-15-513, 2015 WL 9255326 (D. Md. Dec. 17, 2015), sued the hospitals that terminated them for disability discrimination when they refused mandated influenza vaccination, but none prevailed. The Hustvet court ruled that the plaintiff presented insufficient evidence that her allergies substantially or materially limited her ability to perform major life activities. The Chmura court ruled that the nurse failed to prove any contraindication that a latex-free vaccination would not resolve. Likewise, the Eubanks court ruled that the medical assistant’s complaint contained no information about how her allergies substantially limited a major life activity.
Of course, the medical profession has more knowledge about influenza or rubella vaccination and their contraindications than it does about COVID-19 vaccination. On the one hand, the quick approval of the COVID-19 vaccine and uncertainty about its safety and side effects means courts may be less exacting of plaintiffs. On the other hand, the consequences and contagiousness of the COVID-19 favors defendants. In fact, the EEOC has conceded that employers have a powerful defense to ADA liability to the extent an unvaccinated employee poses a “direct threat” to others at the worksite, meaning a significant risk of substantial harm to their health or safety that cannot be eliminated or reduced by reasonable accommodation.[2]
The EEOC’s announcement this week takes the direct threat posed by unvaccinated individuals almost for granted, but employers should still conduct the ordinary individualized direct threat assessment based on a reasonable medical judgment, using the most current medical knowledge and/or the best available objective evidence of the individual’s present ability to safely perform the essential functions of the job.[3] In this event, the employer must consider the duration of the risk, the nature and severity of the potential...
