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Can an Employee Refuse to Get a COVID-19 Vaccine?

February 26 - Posted at 2:49 PM Tagged: , , , , , , ,

Employers wanting to require workers to get a COVID-19 vaccination should be prepared to respond to workers’ concerns and make reasonable accommodations under federal and state law.

Mandating vaccinations could have benefits for employers and employees alike. Vaccinations will likely decrease the risk of spreading the virus in the workplace, reduce absenteeism, increase productivity and decrease employee health care costs. On the other hand, employees may react poorly to mandatory vaccination policies.

According to research by the Society for Human Resource Management (SHRM), 60 percent of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. However, 28 percent of respondents said they are willing to lose their jobs if their employer requires the COVID-19 vaccine.

“Most employers are choosing to inform, educate and encourage their employees to consider the vaccine,” observed Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. However, she noted, there may be industries where vaccination is critical and a mandatory approach makes sense.

“Even then, employees should be informed and educated as to why the business felt that approach was necessary,” she said. “If the employer has made the vaccine mandatory, it needs to be sure that it is ready to terminate or otherwise address employees who refuse and who are not entitled to a reasonable accommodation.”

Consider Accommodations

Employers that require vaccinations may face discrimination claims if they deny accommodation requests based on medical or religious objections.

The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.

Under the ADA, an employer can have 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.”

If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.  

Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.

Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said an employer will need to evaluate the employee’s job functions, whether there is an alternative job that the employee could do that would make vaccination less critical and how important it is to the employer’s operations that the employee be vaccinated.

More Considerations

Employers that mandate vaccines will have more issues to consider beyond providing reasonable accommodations. For instance, can an employer be held liable if a worker has an adverse reaction to the vaccine?

A severe allergic reaction to the vaccination is possible but rare, according to the U.S. Centers for Disease Control and Prevention (CDC).

“If an employer mandates vaccines, there is likely coverage for injury or illness under the employer’s workers’ compensation policy, but employers should check with their carriers,” Hechtkopf said. “If an employer merely encourages employees to obtain a vaccine, coverage under workers’ compensation policies may not be available.”

Employers must also be careful about collecting medical information. “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof,” according to the CDC.

Additionally, Helms noted, a number of states are contemplating legislation that would prohibit businesses from making the COVID-19 vaccination mandatory. So employers will have to monitor the rules in each applicable location.

Encouraging Vaccinations

Employers that plan to require employees to get a vaccine should develop a written policy, Hechtkopf said.

If a significant portion of the workforce refuses to comply with a vaccine mandate, the employer will be put in the very difficult position of either adhering to the mandate and terminating the employees or deviating from the mandate for certain employees, noted Brett Coburn, an attorney with Alston & Bird in Atlanta. This can increase the risk of discrimination claims.

“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to:

  • Develop vaccination education campaigns.
  • Make obtaining the vaccine as easy as possible for employees.
  • Cover any costs that might be associated with getting the vaccine.
  • Provide incentives to employees who get vaccinated.
  • Provide paid time off for employees to get the vaccine and recover from any potential side effects.

Regardless of whether the policy is for mandatory or voluntary vaccinations, Helms said, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.

The Supreme Court left one of its most high-profile decisions for the end of its term, holding today by a 5-4 vote that the Constitution requires states to recognize same-sex marriage. As a result, state bans against same-sex marriage are no longer permissible and all states are required to recognize same-sex marriages that take place in other states. Employers should update their FMLA policies and benefit plans to provide the same coverage for same-sex married couples as for other married couples. Obergefell v. Hodges.

Background
In 2013, the U.S. Supreme Court ruled that Section 3 of the Federal Defense of Marriage Act (DOMA), which essentially barred same-sex married couples from being recognized as “spouses” for purposes of federal laws, violated the Fifth Amendment (United States v. Windsor). On the heels of that case, same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states’ same-sex marriage bans, as well as their refusal to recognize legal same-sex marriages that occurred in other jurisdictions.


For instance, the named plaintiff, James Obergefell, married a man named John Arthur in Maryland. Arthur died a few months later in Ohio where the couple lived, but Obergefell did not appear on his death certificate as his “spouse” because Ohio does not recognize same-sex marriage.  Similarly, Army Reserve Sergeant First Class Ijpe DeKoe married Thomas Kostura in New York, which permits same-sex marriage.  When Sgt. DeKoe returned from Afghanistan, the couple moved to Tennessee, but that state refused to recognize their marriage. 


The plaintiffs in each case argued that the states’ refusal to recognize their same-sex marriages violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that states’ bans on same-sex marriage and refusal to recognize marriages performed in other states did not violate Fourteenth Amendment rights to equal protection and due process.


The Supreme Court accepted review of the controversy, focusing its analysis on whether the Constitution requires all states to recognize same-sex marriage, and whether it requires a state which refuses to recognize same-sex marriage to nevertheless recognize same-sex marriages entered into in other states where such unions are permitted. 


Same-Sex Marriage Is Guaranteed By The Constitution
In its ruling today, the Supreme Court sided with the plaintiffs and held that marriage is a fundamental right; as such, same-sex couples cannot be deprived of that right pursuant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 


Practical Impact On Employers: FMLA Policies and Benefit Documents Must Be Updated  
Following Windsor, the Department of Labor issued a Final Rule revising FMLA’s definition of “spouse” to ensure that same-sex married couples receive FMLA rights and protections without regard to where they reside. Specifically, the DOL’s Final Rule adopts a “place of celebration” rule, meaning that when defining a spouse under the FMLA, it refers “to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State.” In other words, this broad interpretation was intended to ensure that FMLA coverage existed for same-sex couples even in states where same-sex marriage was banned.


The Final Rule had been temporarily enjoined in Texas, Arkansas, Louisiana, and Nebraska by a federal judge who ruled that the DOL did not have the authority to change the definition of “spouse,” and that the change “improperly preempts state law forbidding the recognition of same-sex marriages for the purpose of state-given benefits.” That litigation was on hold pending the outcome of this case. The Supreme Court’s decision in Obergefell paves the way for the Final Rule to go into effect, which means that employers should update their FMLA policies accordingly.


Additionally, employers should review their benefit offerings and consider the impact this decision has on employees who are in same-sex marriages. 


Ironically, the Obergefell decision does not change the fact that sexual orientation is still not a protected class under federal law for employment law purposes. Although many states and municipalities protect against discrimination on the basis of sexual orientation, the proposed amendment to Title VII of the Civil Rights Act of 1964 remains in limbo.

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