The race is on to develop a vaccine that will inoculate people from the coronavirus. There are currently 173 potential vaccines under development and 31 of those advanced far enough to be tested on actual people. The developmental process, at least in the United States, has the added pressure of the 2020 presidential campaign pushing it along.
Given that the question of a vaccine seems to be not “if” but “when,” perhaps now is the time to start asking how companies plan to handle its availability. Are mandatory vaccination policies going to be put into effect to ensure workplace safety? Can they? Should they?
The 2 key pieces of legislation that will govern mandatory vaccination are Title VII of the Civil Rights Act (1964) and the medical accommodation requests addressed in the Americans For Disabilities Act (1990). The government body that will handle enforcement is the Equal Employment Opportunity Commission (EEOC).
Title VII deals with religious objections and requires employers to provide accommodations to an objecting employee with sincerely held religious beliefs. In the current context, this could be a religious objection to all vaccines generally or to the research methods used in developing whatever COVID-19 vaccine ultimately reaches the market.
However, the religious accommodation exemption is not all-encompassing. If the cost of providing that exemption is high enough, it can be deemed unreasonable. The legal standard is called “de minimis,” which means that if the exemption poses “more than a minimal cost,” then the mandatory vaccination program can proceed.
There is no clear consensus among the courts regarding how they might rule in a potential COVID-19 vaccine scenario. Whether or not speculative harm (i.e. the virus being transmitted in the office) establishes undue hardship has seen different rulings from different courts. The exact circumstances of the business in question will matter a great deal. For example, in the case of Robinson v. Children’s Hospital Boston, a federal district court upheld a mandatory flu vaccine because of employees’ exposure to vulnerable patients.
In the case of the Americans For Disabilities Act, an employee seeking an exemption needs to establish a disability. An example in this case might be allergies to potential side effects or chemical sensitivities. Here again, courts have been in conflict over interpretation and the actual circumstances of each individual case will be decisive in the current context.
The EEOC has typically taken a dim view of mandatory vaccination programs. But this past March, as the pandemic came front and center, the Commission changed its guidelines to say that an employee with COVID-19 met the legal standard of posing “a significant risk of substantial harm” in the workplace. That threshold indicates employers may be allowed to take certain actions that might otherwise be squashed.
Much is still undecided though and will be until an actual vaccine with demonstrated results and side effects is available. Furthermore, if large numbers of people do take the vaccine, the door would be open for the courts and the EEOC to be generous in allowing exemptions (if most people in the office are vaccinated, the dangers of a few people being contagious is drastically reduced).
Employers are also being advised to proceed with caution—even if the courts will uphold their rights to implement a mandatory vaccination policy, there might be less drastic alternatives available for objecting employees.