JANUARY / FEBRUARY 2021 HUMAN RESOURCES '3:-( Vaccines Can employers mandate them? (IFVE % 1EWXVMER Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Employers may want to know whether they can require employees to get a COVID-19 vaccine if and when vaccines are approved by the Food and Drug Administration and widely available. While the answer is likely yes for healthcare workers, because they work directly with patients or handle materials that can spread infection (e.g., lab technicians), the answer is not yet clear for employees in other industries. The Equal Employment Opportunity Commission has not issued any guidance as of this writing, but is expected to weigh in. The EEOC previously issued guidance relating to flu vaccines, taking the position that employers should not mandate flu vaccines for all employees. This is different from the Occupational Safety and Health Administration, which takes the position that employers can mandate vaccinations. A vaccine is considered a medical exam under the Americans with Disabilities Act. For a vaccine to be a requirement, therefore, it must be job-related, and it must be consistent with business necessity or justified by a direct threat to the health and safety of others.* Ordinarily, this is a difficult standard for an employer to satisfy, unless the employer is in the healthcare industry or other field where employees are regularly interacting with immune-compromised clients, patients or customers. Even then, federal law requires those employers to make exceptions (accommodations) for employees who are pregnant, have a disability or have a valid religious reason for not wanting the vaccine, unless not getting the vaccine would impose an undue hardship on the employer. Some states also have laws allowing religious exemptions for required vaccinations, although Indiana is not one of them. Cases involving exemptions or accommodations must be examined on a case-by-case basis. Religious objections are fairly common. The objection must be based on a sincerely held religious belief. In most cases, an employer assumes the sincerity of the employee’s religious belief, but may question the religious nature of the request if the objection appears to be based on a personal belief rather than a specific religion or religious tenet. In such cases, an employer can ask the employee for documentation or support for the request. In Fallon v. Mercy Catholic Medical Center, a hospital terminated an employee who refused to get a flu vaccination after citing religious reasons and requesting an accommodation. The employee sued the employer for religious discrimination under Title VII of the Civil Rights Act. The employee lost. The court found that he did not belong to an organized religion and had merely supported his request with a lengthy explanation of his belief that a person should not harm their body, that the vaccine “may do more harm than good,” and that getting a vaccine would “violate his conscience as to what is right and wrong.”
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