All information in this COVID-19 Response Resource issue is effective as of February 4, 2021.
As the day draws closer when COVID-19 vaccines become available to the general public, employers must decide whether to 1.) Require their employees to have a vaccination, 2.) Incentivize employees to receive a vaccination, or 3.) Simply do or say nothing about a vaccination.
Employers can legally require employees to receive a vaccination for COVID 19. However, if an employee objects to receiving the vaccine because he or she suffers from a disability under the Americans with Disabilities Act (ADA), the employer must engage in the interactive process with the employee to determine whether there is a reasonable accommodation that can be made. Such accommodations may include continuation of remote working, isolation from other workers and customers or other measures designed to protect the employee from the potential of contracting COVID 19. Employers may request certification regarding the employee’s claimed disability similar to other accommodation requests under the ADA.
If an employee objects to vaccination on religious grounds, an employer must provide a reasonable accommodation for the employee’s religious belief, practice or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. “Undue hardship” is a hardship involving more than a de minimis cost or burden on the employer. The Equal Employment Opportunity Commission (EEOC) has stated that because the definition of “religion” is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. If the employer has an objective basis for questioning either the religious nature, or the sincerity of a particular belief, practice, or observance, the employer may request supporting information from the employee.
Rather than mandating vaccinations, most employers will be best served by making vaccinations voluntary or creating incentives for employees to receive the vaccination. Before implementation, an incentive program should be vetted by legal counsel to ensure it is does not violate any employment discrimination laws.
To discuss this or other related issues, contact Sean Monson by calling (801) 536.6714 or send an email to smonson@parsonsbehle.com.
