Implementing Employment Vaccination Policies

By Jenny McMenomy

The controversial topic of mandatory vaccinations within schools and the workplace is once again in the news.  While complicated, it should be noted that when implementing a mandatory vaccination program at a business, employers must provide exemptions based on religious belief or disability.  This article will discuss each federal exemption in detail and briefly discusses statewide laws on the subject of vaccination policies.

 Federal Religious Belief Exemption

Pursuant to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”  Title VII prohibits discrimination in any of the following forms: 1) Hiring and firing; 2) Compensation, assignment, or classification of employees; 3) transfer, promotion, layoff or recall; 4) job advertisements; 5) recruitment; 6) testing; 7) use of company facilities; 8) training and apprenticeship programs; 9) fringe benefits; 10) Pay, retirement plans and disability leave; 11) other terms of employment.  A religious belief has been defined under Title VII to include “moral or ethical beliefs as to what is right and wrong, as long as those beliefs are sincerely held with the strength of traditional religious views.” 

In order to prevail on a Title VII claim, and avoid vaccination requirements of an employer, the employee must first show that a bona fide religious practice conflicts with an employment requirement and was the reason for an adverse employment action.  If the employee is able to establish a case, the burden will shift to the employer to demonstrate that 1) the employer provided reasonable accommodation to the employee; or 2) the offering of the reasonable accommodation would cause the employer to suffer an undue hardship.  An undue hardship is established if it “imposes more than a de minimis cost to the employer.  The United States District Court for Massachusetts has found that facts that may be relevant in making an undue hardship determination may be “the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation.” 

The Equal Employment Opportunity Commission (EEOC) has provided some guidance in defining a “sincerely held” religious belief and how an employer can make a determination on whether a belief is “sincerely held.”   Accordingly, an employer who is in doubt of a sincerely held belief is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held.  The EEOC provided some factors, whether alone or in combination– that may cast doubt upon a sincerely held belief such as: 1) whether the employee has behaved in a manner markedly inconsistent with the professed belief; 2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; 3) whether the timing of the request renders it suspect (e.g. it follows an earlier request by the employee for the same benefit for secular reasons); and 4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Thus, there are several issues to be aware of in drafting an appropriate vaccination policy to provide for reasonable accommodation for religious exemption. 

Federal Disability Exemption

An exception to a vaccination policy must also be made available for those employees that are not medically able to be vaccinated as the result of a disability.  Pursuant to the Americans with Disabilities Act (ADA), an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  The ADA applies to “private employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year.”  The ADA defines a disability as 1) A physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such impairment.  Under the ADA, an employer is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless the accommodation would impose an undue hardship.

An undue hardship is defined differently in the ADA than the undue hardship under the religious exemption exception.  The EEOC developed a regulation to outline various factors that courts should consider in order to assess whether an undue hardship exists under the ADA.  Thus, showing an undue hardship under the ADA is a significantly higher standard than finding an undue hardship when considering a religious exemption to an employer’s vaccination policy.

While the standards under the ADA set a higher bar for accommodation, it is more difficult for an employee to meet the exception requirements under the ADA.   The employee is required to establish first that there is a disability as it is recognized under the ADA and then must establish that the disability requires accommodation with respect to vaccination.  Moreover, the employee is required to prove that the disability requires the exemption from the vaccination policy.  For example, if an employee has an allergy to a vaccine, that is not sufficient in itself to establish that the employee has a disability under the ADA and therefore, no accommodation is required in that instance.  A disability sufficient to establish protection under the ADA would require demonstration of a disability that limits one or more major life activities and a showing that the employer can reasonably accommodate that employee.

Nevada Law

Nevada does not have any specific laws that pertain to mandatory vaccination policies implemented by employers.  Nevada is an at-will employment state.  Thus, an employee can be terminated without cause for failing to comply with an employer-implemented vaccination policy however, the employer will still need to comply with the federal disability and religious exemptions discussed previously to avoid discrimination claims under federal law.

As an employer, if you wish to implement a vaccination policy in your workplace, it is of the utmost importance that you retain legal counsel to assist you in drafting and reviewing your vaccination policies to ensure that they are in compliance with federal, state, and local laws. An experienced employment law attorney can provide you with the information needed to protect your business and ensure compliance with the law.

See the article at: NNBV