What Texas business owners need to know about mandating employee vaccines

By Velissa Chapa/ Legal Counsel to Commissioner Aaron S. Demerson of the Texas Workforce Commission

Mandating vaccines is tricky business, even during a pandemic. There are various legal issues employers should be aware of before moving forward with any kind of mandatory vaccination policy. In fact, it is because of these issues that many employers choose to encourage employee vaccinations instead of mandating them.

Before COVID-19, various federal agencies provided guidance on mandating other types of vaccinations (such as the flu shot). There is a belief that this guidance has shifted significantly in light of the recent pandemic.

However, a pandemic does not nullify certain legal protections for employees. The following is an explanation of what those legal protections are, what employers must do to balance them, and best practices.

Protected Reasons for Refusal: Medical and Religious

Some reasons for refusing a vaccine are protected under federal law. Title VII of the Civil Rights Act of 1964 (Title VII)—which applies to employers with 15 or more employees—prohibits employment discrimination based on religion or a medical contraindication.

Employees may refuse a vaccine due to sincerely held religious beliefs, or for legitimate medical reasons, such as pregnancy, severe adverse effects, or a life-threatening allergy to the vaccine.

Whether the reason for refusal is religious or medical in nature, the result is the same: the employer would need to take steps to reasonably accommodate that employee unless doing so would pose an undue hardship. A reasonable accommodation could mean exempting that employee from the vaccination requirement.

Employers may believe that reasonable accommodation is not possible during a time of a pandemic. They should keep in mind that the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) have provided guidance on infection-control practices, such as social distancing, the use of PPE such as gloves, masks, and face shields, and sanitization of the workplace.

Continued use of these practices could constitute reasonable forms of accommodation, arguably making it more difficult to prove undue hardship. Of course, each case must be addressed on a case-by-case basis.

For more information, see questions K.6 and K.7 in the following guidance from the Equal Employment Opportunity Commission (EEOC): https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

Therefore, employers who choose to mandate vaccines for employees would do well to have a written policy, and the policy should provide for religious and medical exemptions, as well as include a procedure for how such issues should be addressed.

For further guidance on appropriate medical inquiries, whether the employee’s lack of vaccination would pose a “direct threat” to the workplace, reasonable accommodation, undue hardship, and practices for preparedness see the EEOC’s guidance on pandemic preparedness: https://www.eeoc.gov/sites/default/files/2020-04/pandemic_flu.pdf (see page 10 for information on mandating vaccines).

Unprotected Reasons for Refusal

An employee may refuse a vaccine for moral, social, or political reasons, or as a matter of personal preference. However, according to the EEOC, none of these arguments constitute legally-protected rea-sons for refusing a vaccine.

Additional Legal Concerns

Businesses with less than 15 employees are not covered under Title VII, but the guidance for employers in this category remains the same, just for different, additional reasons.

First, employers should remember that employees who are injured from taking a mandatory vaccine could have a Workers’ Compensation claim against the employer.

For employers who do not have Workers’ Compensation, legal liability could still result from employee harm.

In addition, mandatory vaccines could lead to employee discussions about the policy. Such discussions may be protected under the National Labor RelationsAct (NLRA).

Under this federal law, employees have the right to discuss their working conditions with one another and disciplining or preventing employees from having such discussions could result in a violation of the NLRA: https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employ-ee-rights-section-7-8a1.

Employees who are terminated for refusing to receive the vaccine may file for unemployment benefits. Depending on the facts of the case, an employee may be eligible to receive unemployment benefits, and the employer could be charged.

Finally, all employers—regardless of size—that mandate vaccines and do not pay for the associated costs may risk a racial discrimination lawsuit under42 U.S.C. §1981, as such a practice may have a disparate impact on minority populations: https://www.govinfo.gov/content/pkg/USCODE-2009-title42/pdf/USCODE-2009-title42-chap21-subchapI-sec1981.pdf.

Employers should also pay for the vaccine if there is a risk that not doing so would take the employees below minimum wage.

Employers in the Healthcare Industry

Many employers in healthcare believe that there is a special exception that applies to employers in the healthcare industry. The belief is that mandating vaccines without exception is crucial because of the heightened responsibility of maintaining the health and well-being of patients.

However, there is no specific exception for the healthcare industry, and health-care employers fall under the same analysis as above.

As an example, in the case of EEOC v. Saint VincentHealth Care Center, Civil Action No. 1:16-cv-234(Sept. 22, 2016), the employer paid $300,000 in back pay and compensatory damages to six employees whose religious exemption requests were denied. The primary lessons from this case include that:

1. Employers must notify employees of their right to request an exemption and establish appropriate procedures;
2. Employers cannot reject a religious accommodation simply because they do not agree with the religion; and
3. Employers cannot require exemption requests to be certified by clergy members (see https://www.eeoc.gov/newsroom/saint-vincent-health-cen-ter-pay-300000-settle-eeoc-religious-accommo-dation-lawsuit).

Being in the healthcare industry does not, by itself, relieve employers from the obligations to reasonably accommodate employees under Title VII, nor does it completely shield the employer from the other legal concerns listed.

Best Practices

In general, mandatory vaccination requirements are not recommended for employers outside of the healthcare industry due to the complicated issues that can arise from such a mandate.

For those employers who do choose to mandate employee vaccines, they should make the exemptions for medical or religious reasons clear in policy, create a process for opting out, and consider only applying the policy towards employees who regularly interact with patients.

Do not forget to train managers on how to handle refusals and accommodation requests, and remind employees of OSHA and CDC guidelines and make resources easily accessible to employees (the Department ofLabor has compiled a list of COVID-19 resources for employers: https://www.dol.gov/agencies/odep/top-ics/coronavirus).

Employers may also need to pay for the vaccine and reasonably accommodate if an exemption is requested. Consider providing paid time-off for employees who elect to take the vaccine.

Do not retaliate, and remember: each case stands alone, so keep excellent documentation of the accommodation process.

Finally, employers should continue to implement mandatory infection-control practices, such as social distancing, sanitizing, and the use of PPE.

Conclusion

Although it is not generally recommended that employers mandate employee vaccinations, employ-ers can certainly encourage employees to do so.

Of course, employers who are interested in imposing a mandatory vaccination requirement should seek a qualified attorney of their choosing to assist in the development and enforcement of such a mandate.
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