Five pharmaceutical companies are in final stages of accelerated clinical studies for a coronavirus (COVID-19) vaccine. At this time there is no reliable estimate regarding when any of these vaccine candidates will be approved by the FDA for emergency use, let alone available for general distribution.
In the meantime employers are already asking whether it will be lawful to establish mandatory vaccination policies for their employees.
Health care employers have considerable experience in establishing and enforcing mandatory flu vaccine policies for their employees. Unfortunately, a number of health care employers have been sued by their employees regarding these policies.
Employees have claimed that mandatory vaccine policies can result in religious discrimination in violation of Title VII of the Civil Rights Act of 1964. They have also claimed that such policies can result in disability discrimination in violation of the Americans with Disabilities Act.
For example, Mission Hospital in North Carolina was sued by the EEOC over its mandatory flu vaccine policy on the grounds that the hospital violated Title VII's prohibition against religious discrimination.
The hospital permitted employees to make a written request for an exemption from the policy, but it required that such requests had to be received by Sept. 1 or they would be subject to denial. Three employees submitted their religious exemption requests after the Sept. 1 deadline, and the hospital terminated their employment.
The EEOC alleged that the hospital violated Title VII by failing to properly accommodate these employees' religious beliefs. In 2018 the hospital and the EEOC settled the lawsuit. The hospital, which had already incurred untold legal expenses in defending itself against the lawsuit and pursuing an ultimately unsuccessful summary judgment challenge, agreed to pay $89,000 to the three terminated employees.
It also entered into a two-year agreement with the EEOC in which it agreed to revise its policy, conduct annual training on Title VII and religious accommodations, post an employee notice about the lawsuit, and provide periodic reports over this two-year period to the EEOC regarding religious exemption requests that it received.
What is a "religious belief" under Title VII? The EEOC states that religious beliefs include theistic beliefs (i.e., those that include a belief in God) as well as nontheistic "moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views."
The EEOC refers to religion as typically concerning "ultimate ideas" about "life, purpose and death." The agency has stated that social, political or economic philosophies, as well as mere personal preferences, are not "religious" beliefs that are protected by Title VII. 1
Would you consider "veganism" to be a religious belief that would permit an employee to refuse to adhere to a mandatory vaccine policy on religious grounds? In Chenzira v. Cincinnati Children's Hospital Medical Center, a lawsuit filed in the U.S. District Court for the Southern District of Ohio, a 10-year hospital employee was terminated after refusing to adhere to her employer's mandatory flu vaccine policy, contending that her termination violated her religious and philosophical convictions as a vegan. She claimed that the flu vaccine contained animal by-products that she would not consume due to her religious and philosophical beliefs as a vegan.
The hospital filed a motion to dismiss the lawsuit, arguing that veganism is not a religion but is instead only a dietary preference or social philosophy. In response the employee argued that her veganism was a moral and ethical belief that was sincerely held with the strength of traditional religious views. She cited biblical references in support of her claim.
The federal court declined to dismiss the lawsuit, ruling that it was plausible that the employee's belief in veganism equated with traditional religious views. The case was settled three years after it was filed on undisclosed terms. 2
What is the lesson? Employers should carefully evaluate the basis of the religious exemption raised by the employee. Employers should also be cautious about denying requests for religious exemptions.
On the other hand employers may consider factors that indicate an employee does not hold a "sincerely held belief," such as whether the employee has behaved in a way that is not consistent with the professed belief or whether the exemption request is suspect because the employee made an earlier request for the exemption on grounds unrelated to religion.
Now, let's briefly turn to the ADA issue. Due to the COVID-19 pandemic, the EEOC updated its publication, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, 3 that was originally issued in 2009 in the wake of the H1N1 virus pandemic. In this publication the EEOC confirms that COVID-19 presents a "direct threat" that provides employers with great latitude in questioning employees about their health status and in determining whether they should be allowed to be present in the workplace.
In this publication the EEOC also answers the question of whether an employer may lawfully require employees to be vaccinated regardless of their medical conditions (or religious beliefs) during a pandemic.
The EEOC's response is that employees may be entitled to an exemption from a mandatory vaccination policy based on an individual's ADA-qualified disability that prevents the employee from taking the vaccine or based on the employee's religious beliefs. The EEOC points out that this would be a reasonable accommodation for an employer to make, barring undue hardship on the employer.
The EEOC stated that employers "should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." However, the EEOC's updated answer to the mandatory vaccine policy question adds: "As of the date this document is being issued, there is no vaccine available for COVID-19." Perhaps this signals a potential change in the agency's position based on CDC guidance after a COVID-19 vaccine is approved, particularly in view of the magnitude of this pandemic.
The CDC reports that more than 215,000 deaths have occurred in the United States involving COVID-19 (compared to the 1918-19 Spanish flu pandemic that resulted in 675,000 U.S. deaths in a comparatively inferior health care infrastructure). Therefore, it is possible that government authorities will endorse mandatory vaccine programs.
Aside from the legal issues,4 employers considering a mandatory vaccine policy should evaluate the employee relations aspects of the policy. While the FDA has gone to great lengths to provide assurance that all approved COVID-19 vaccines will be safe and effective, the agency acknowledges that there is no vaccine or any other medical product that is 100% safe or effective. In addition, Gallup has been polling Americans regarding their willingness to be vaccinated. Its latest poll, released last month, showed a drop from 66% to only 50% of those polled who were willing to be vaccinated. Accordingly, employers must be prepared with a response when employees object to being forced to undergo COVID-19 vaccination as a condition of employment. This will be a volatile issue that has the potential to create considerable divisiveness and controversy in the workplace. We cannot emphasize enough that appropriate communications with employees must be developed. Our suggestion is that you discuss the options with legal counsel before establishing a mandatory vaccination policy. Please contact Michael Blickman or any member of our Labor and Employment team for additional guidance. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
1 See U.S. Equal Employment Opportunity Commission, Compliance Manual on Religious Discrimination, Sec. 12-I-A. (2008). https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.
2 A California state court ruled that veganism was not a "religious creed" in Friedman v. Southern California Permanente Medical Group, 125 Cal. Rptr. 2d 663 (Cal. Ct. App. 2002), petition for review denied, 2002 Cal. LEXIS 8131 (Cal. Nov. 26, 2002), cert. denied, 538 U.S. 1033 (2003). However, the court indicated that veganism could qualify as a religious belief under Title VII.
3 See https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
4 There are several other legal issues beyond the scope of this article, such as whether a unionized employer must bargain with the union regarding a mandatory vaccination policy. A related issue is whether it would violate the National Labor Relations Act to issue corrective action to employees (unionized or not) who engage in protected concerted activity in opposition to an employer's mandatory vaccination policy. An important issue for a government employer is whether it can lawfully enforce this type of policy without violating the constitutional rights of its employees.
5 This is an issue, not just in the U.S., but throughout the world. For example, Brazilians have demonstrated against proposed mandatory vaccination programs (requiring the use of the China-developed Sinovac vaccine) and the Supreme federal court of Brazil may ultimately decide the issue.