COVID-19 Vaccine Mandates

Amy M. Hebbeler, Fraternal Law Partners, Amy.hebbeler@Manleyburke.com

Vaccine mandates are not new. As more mandates are being issued by employers and booster shots are becoming available, the vaccine mandates issue is back in the forefront. However, with booster shots and new government mandates it is important to note that the basics regarding vaccine mandates have not changed. What that means is generally federal employment laws such as the American with Disabilities Act (ADA), Title VII and other federal employment non-discrimination laws do not prohibit an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19.^[1]

Of course, it would not be a rule without exceptions. Under Title VII and the ADA an employer must enter into an interactive process with the employee to see if a reasonable accommodation is available if the employee claims he or she cannot receive a COVID-19 vaccine because of either (1) a disability or (2) a sincerely held religious belief. Reasonable accommodations are not absolute. If providing a reasonable accommodation would pose an undue hardship on the operation of the employer’s business, the employer is not required to offer it.

While the basic laws have not changed regarding these vaccine mandates, additional federal and state laws have been implemented either requiring vaccines or, in limited cases, prohibiting vaccine mandates. The most recent move in COVID requirements comes from the Biden Administration’s federal vaccine mandate requiring federal employees and contractors to be fully vaccinated against COVID-19. This mandate has been challenged in a few federal courts and only time will tell how those challenges will play out.

Several federal agencies have also issued updated guidance regarding vaccines and vaccine mandates. At the beginning of November, the Occupational Safety and Health Administration released its Emergency Temporary Standard which established minimum vaccination, vaccination verification, face covering and testing requirements for COVID-19.^[2] The Equal Employment Opportunity Commission also continues to update its guidance regarding COVID-19 to address the new and continuing issues faced by employers regarding COVID-19. In its most recent guidance, the EEOC has included its religious accommodation request form to assist employers in the increase in religious accommodation requests.^[3]

Given the foregoing, there are a few important things that employers should keep in mind when issuing mandatory vaccine policies:

1. If you have a COVID-19 policy, make sure you follow the policy and apply the policy uniformly.  
2. Be prepared for reasonable accommodation requests and engage in an interactive process with the employees. This includes having a clear process for employee requests and training the individuals evaluating the requests how to handle both disability and religious accommodations.
3. Be aware of the current federal, state and local guidance and adjust policies accordingly.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[2] https://www.osha.gov/coronavirus/ets2

[3] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws