By Peter J. Cass, OD
Jan. 13, 2021
With the COVID-19 vaccines now widely available, some employers may want to require their employees to get vaccinated. However, employers, including optometric practice owners, need to be cautious and understand what the laws say before requiring inoculation. If you are considering mandating a vaccination for employees, I would recommend consulting with an attorney. This article is not legal advice, but does provide background on the issue and some points that employers should consider.
Editors’ Note: Always consult with your practice attorney before initiating any employee mandates.
The Landmark Case
The first ruling on vaccinations goes all the way back to 1905 in Jacobson v. Massachusetts. In this case, the Supreme Court ruled that employers could mandate vaccination (for smallpox at the time). This ruling established precedent that allows employers, who feel there is a legitimate claim to public safety, the right to mandate vaccination. The ruling was limited to the application of smallpox. This right falls under the “at will” doctrine and could apply to all states but Montana.
More recently the U.S. Equal Employment Opportunity Commission (EEOC) has ruled that, in general, employers can establish legitimate health and safety standards, policies and requirements so long as they are job-related and consistent with business necessity, and so long as they consider reasonable accommodations for disabilities and religious beliefs. In an era where individual rights are a big deal, employees can and will claim these exemptions. This is evidenced by the fact that even commonly mandated vaccinations of hospital workers for the flu are challenged by those workers.
The EEOC has not made specific statements about employer requirements for COVID vaccination, but they have addressed it as a legitimate health and safety issue, stating: “These facts [referring to CDC information] manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.” Click HERE to read more.
Another important agency affecting vaccination policy for workers is the U.S. Occupational Safety and Health Administration (OSHA). There are no OSHA requirements for employees to take vaccines, but as previously stated, an employer could require vaccination for legitimate public health and safety reasons. However, an employee could refuse vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (even fear of serious reaction to the vaccine), and may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970. Employers need to be properly informed of the benefits and risks of vaccinations, so they can appropriately discuss this with employees.
So, while it does appear you can create a mandate for vaccination, based on precedent, EEOC policy and OSHA policy, there are many reasons employees can fall into an exemption, and an employer cannot unequivocally mandate vaccination. The EEOC states:
“An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense).
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Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36) Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” Click HERE to read more.
The EEOC defines some specific exemptions:
Disability-based objections – If an employee claims a qualifying disability under the Americans with Disabilities Act (ADA), you may be required to grant an exemption to mandatory flu vaccinations as a reasonable accommodation. But that still leaves many questions: What would constitute a reasonable accommodation? Does the wearing of personal protective equipment provide adequate protection (many have been preaching this – may be difficult to now state otherwise)? If the only accommodation is exempting the employee from the flu shot, is that an undue hardship? (As a reminder, under the ADA, “undue hardship” is “significant difficulty or expense” incurred by the employer in providing an accommodation.)
As with any request for an accommodation, you must engage in an interactive process to determine if reasonable accommodations are available that would allow the employee to perform the assigned job or another available job for which the employee is qualified. In a stated disability or medical exemption claim, you do not have to take the employee’s word for it. You can, and likely should, ask the employee to provide documentation from a physician.
Religious Objections – A religious objection to vaccination must be based on an authentic and sincerely held belief. An employer can contest the authenticity and sincerity of the belief, but it is not easy. Courts have broadly interpreted “religion” in the context of required vaccination policies (example, veganism as a religion was upheld in court). The best practice is not to judge the validity of an employee’s claimed religious practice. However, you are allowed to engage in dialogue to better understand the employee’s belief and try to come to a mutual agreement on a course of action.
Many practices could face resistance to vaccination from employees, which could lead to employee morale issues, dissension, or even litigation. There could also be potential workers’ compensation or other liability exposure for injuries or illnesses resulting from adverse reactions or side effects from mandated vaccinations. Before mandating vaccination, employers should consider how the practice fared during the height of the pandemic, when there was no vaccine. If the practice was able to prevent the spread and did not experience closures or significant staff absences, it might be better to recommend vaccination rather than mandating vaccination. Many employees, especially those who are concerned, or at risk, will want to be vaccinated anyway.
The Bottom Line
New guidance, ruling, and definitely court action, is expected on this question. The EEOC decision is an HR ruling and other factors come into play regarding the issue of mandated vaccination. While a mandate may be within the right of the employer, both OSHA and EEOC encourage “recommending” (albeit strongly) vaccination, but not requiring it. However, it is clear that a mandate is may be a legal action as long as you are willing to “accommodate” any legitimate reason for refusal. Keep in mind “legitimate reason” is more in the employee’s favor than the employer’s, and courts will tend to side with employees.
Peter J. Cass, OD, is a partner in Practice Compliance Solutions, Faculty for the University of Houston College of Optometry, an associate at MyEyeDr Beaumont, and past-president of the Texas Optometric Association. To contact: peter@PCScomply.com