By Joshua Daniel Brittingham
As an employer, your plate is full with the COVID-19 pandemic. You have grappled with masking, distancing, and physical barrier requirements for over a year, earnestly working to keep your customers and employees safe—and struggling to remain compliant with a moving target of regulations. Now, you are also forced to think through the implications that come with widely available vaccinations. Should you mandate or incentivize employee vaccination? These issues alone are challenging enough. But if you decide to mandate or incentivize vaccinations for your employees, there is another lurking consideration: employees who refuse vaccination on religious grounds.
Are you prepared to evaluate a possible vaccination policy for your company and comply with the applicable religious liberty protections? This article provides a general roadmap on such issues.
Mandating and Incentivizing COVID-19 Vaccination
For many, the advent of widely available COVID vaccines elicits a sigh of relief. As an employer, you may see vaccination as a doorway to the return of normalcy—specifically, through implementing a mandatory vaccination program or incentivizing vaccinations. The good news is that most employers can probably do so while complying with applicable laws.
In general, employers can require employees to get the COVID-19 vaccine if the employer determines that unvaccinated employees pose a “direct threat” to the health and safety of themselves or other individuals in the workplace, whether this is co-workers, clients, customers, or others. The EEOC, CDC, and other agencies state that COVID-19 transmission is a “direct threat” to health and safety in the workplace. That means that in many circumstances, an employer can make a defensible case for requiring employees to get vaccinated for COVID-19.
The better question is not “can” an employer mandate vaccination, but “should” they? There are many factors involved. As an employer, you should consult with legal counsel regarding the specifics of a proposed vaccine mandate/incentive policy and obtain a particularized risk assessment of pursuing a vaccination policy for your business.
The Religious Exemption
Should you decide to mandate or incentivize vaccination, you must account for and build in compliance with the religious exemption under Title VII. It applies when an employee’s “sincerely held religious belief or practice” prevents them from being vaccinated.
Sincerely held belief/practice is a broad, often confusing label that can be difficult for employers to apply. Generally, employers should take a request for such an exemption seriously and should engage in an “interactive process” to reach a reasonable accommodation that will allow the employee to continue to work safely in some capacity.
Reasonable accommodations can come in many forms and vary greatly depending on the nature of the work. It may be possible for some employers to allow the employee to work from home, or the employee may be able to work in an office with a closed door with limited interaction with others. You should consult with legal counsel to navigate each religious exemption claim and evaluate the strategic options.
Don’t lose sight of the religious exemption aspect of your vaccination policy. Employers mandating or incentivizing employee vaccination should be prepared for and build in compliance with the religious exemption. The attorneys of Davis Grimm Payne & Marra are experienced with this and many other COVID-related topics. Please do not hesitate to reach out. We would be glad to help your company.