In light of recent directives from the Biden Administration, an increasing number of employers with COVID-19 vaccine mandates will be faced with the question of what to do if an employee refuses to get vaccinated.
Vaccine Mandates
In July 2021, President Biden announced vaccination requirements for federal government employees and called on the private sector to encourage vaccinations. Many companies in the United States have implemented vaccine mandates in recent months, particularly after the Pfizer vaccine received full approval from the Food and Drug Administration on August 23, 2021.
On September 9, 2021, President Biden issued Executive Orders requiring federal employees and federal contractors to receive the COVID-19 vaccine. In addition, workers in health care facilities that accept Medicare and Medicaid must be vaccinated, and employers with 100 or more employees must require their employees to be vaccinated or tested weekly. The Biden Administration estimates that these vaccine mandates will affect approximately 100 million workers, which accounts for more than two-thirds of the U.S. workforce.
As employers await further guidance on these vaccine mandates from the federal government, employers should start to consider how they will handle employees who refuse to get vaccinated.
How to Handle Vaccine Refusal
Determine Basis
An employer’s first step in dealing with an employee who refuses to get vaccinated is to determine the basis for the employee’s refusal. Even with lawful vaccine mandates, employers with 15 or more employees must comply with the Americans with Disabilities Act and Title VII of the Civil Rights Act, which might require granting exceptions to vaccine mandates for employees based on disability or religion. However, if an employee objects to the vaccine for other reasons that are not protected by law (e.g., personal or political reasons), the employer has no obligation to grant an exception to the employee.
Interactive Process
If an employee objects to the vaccine based on disability or religion, the employer must engage in an “interactive process” with the employee to understand the nature of the disability or religious belief and how the disability or religious belief affects the employee’s ability to be vaccinated. In the case of disability, the employer can require the employee to provide supporting documentation from a medical professional. In the case of religious objection, the employer may request supporting information if the employer has an objective basis for questioning either the religious nature of the objection or the sincerity of the employee’s belief.
Direct Threat and Undue Hardship
Even if the employee’s objection to the COVID vaccine relates to a disability or sincerely held religious belief under applicable law, the employer is not required to exempt the employee from the vaccine requirement if doing so would pose a “direct threat to the health and safety of individuals in the workplace” or create an “undue hardship.”
Direct threat is evaluated based on four factors: (1) duration of risk, (2) nature/severity of potential harm, (3) likelihood of harm occurring, and (4) imminence of potential harm. If the employer determines that an unvaccinated employee poses a direct threat, the employer cannot take adverse action against the employee (e.g., termination of employment) unless no reasonable accommodations are available that would eliminate or reduce the risks (e.g., allowing the employee to work remotely) without creating an undue hardship.
For disability objections, undue hardship is defined as “significant difficulty or expense.” For religious objections, undue hardship is defined as more than a “de minimis” cost or hardship on the employer (a lower standard).
Employers must evaluate direct threat and undue hardship on an individual basis considering the facts and circumstances applicable to the employee requesting the exception.
Reasonable Accommodation or Termination
If the employer concludes that it can provide a reasonable accommodation to the employee (e.g., working remotely) that mitigates the risks associated with an unvaccinated employee and does not create an undue hardship, the employer should grant the employee an exception to the vaccine requirement.
If, however, the employer determines that it cannot provide a reasonable accommodation to the employee that mitigates the risks and does not create an undue hardship, the employer can terminate the employee’s employment for failure to comply with the vaccine mandate.
Conclusion
The law regarding vaccine requirements and the impact of disability and religious objections on such requirements is complex, and the analysis is likely to grow more complicated as various federal agencies issue guidance regarding the Biden Administration’s recent directives.
If you have questions or concerns regarding how to comply with such directives, how to implement vaccine requirements, and/or how to evaluate objections to such requirements, please contact Maureen Carr at mcarr@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.