Thinking of a vaccine mandate?

By: Darlene Clabault

Publication: Employment Law & Regulatory Alert

Date Posted: 12/08/2020

Vaccine mandate is OK, with some considerations

With a COVID-19 vaccine on the horizon, you might be wondering if you may mandate that all your employees get the vaccine when it becomes available. Generally, you may, but some situations will require considerations, and you should be prepared for those situations.

If, after you have a policy spelling out the requirement and any potential ramifications for violating the policy, Emma Employee comes to you and says she will not get the vaccine, one of your first responses may simply to ask why.

Medical conditions

If Emma Employee indicates that her doctor has told her that, due to her medical condition, she should not get the vaccine, this is a request for a workplace change (an exception to a workplace policy) under the Americans with Disabilities Act (ADA), which triggers your requirement to engage in an interactive process (a.k.a. talk to) Emma. As part of this process, you may ask for reasonable documentation of her limitation, assuming her limitation/condition is not obvious.

Assuming that Emma’s documentation supports her claim for an accommodation, and the accommodation is reasonable, you should allow for it. Since Emma’s request is pretty much medically required, you don’t have a lot of wiggle room. Remember, you don’t have to provide the particular accommodation that an employee requests, but you need to provide one that is effective.

You need not provide an accommodation that would pose an undue hardship: significant difficulty or expense focusing on the resources and circumstances of your particular organization in relationship to the cost or difficulty of providing a specific accommodation.

Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. You must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.

Religious beliefs

If Emma Employee indicates that she would not get the vaccine due to her religious belief, you also need to stop and consider her request. Emma’s religion need not be a generally accepted faith. It needs only be a sincerely held religious belief. She might, for example, subscribe to veganism or something that prohibits vaccines with a sincerity equating that of traditional religious views. That might be enough. Simply stating that she did not want to get the vaccine because she did not believe in vaccines, however, is not enough.

You need not provide a religious accommodation that poses an undue hardship. This, however, is different from the ADA undue hardship. A religious accommodation may cause undue hardship if it is more than a minimal burden on operation of the business. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Policy

You should have a policy regarding a vaccine mandate and inform employees what to do if they have any questions regarding it, including the reason for the mandate — to help curb the spread. The policy should also indicate potential repercussions for failing to follow it. Generally, you want employees to know what to expect.

Of course, you also need to look at your particular workplace and determine if such a mandate will be right. A policy encouraging the vaccine might work best for your organization.


Key to remember: A vaccine mandate is acceptable, but employees may ask for an exception.

About the author
Darlene Clabault - HR Senior Editor

Darlene is a Senior Editor on the Human Resources Publishing Team and specializes in employment law topics such as the Family and Medical Leave Act, the Americans with Disabilities Act, Forms I-9 and E-Verify.

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