This Blog Post was written when C)VID-19 vaccines first became widely available – consult with legal counsel for updated information.
Since COVID-19 vaccinations became widely available, many outdoor recreation business and organizations are wondering how to best protect their guides, staff, and guests. Can an employer legally require a COVID-19 vaccinate as a term of employment? Would doing so create risk for being sued for discrimination and if so, under what laws?
The current interpretation of the laws suggests employers can likely create mandatory COVID-19 vaccination policies for employees, but reasonable accommodations for disability or religious belief must be meaningful explored and implemented if reasonably possible.
In all cases, analysis on vaccination must be individualized and case specific. Voluntary compliance is ideal and will eliminate the need for the detail legal analysis below. What we discuss below can assist you in planning whether to impose a mandatory vaccination requirement but designing and implementing such a policy requires further legal guidance.
Voluntary Is Best
For recreation-based businesses, many practical considerations should be evaluated prior to deciding to implement a mandatory policy.
Recreation businesses often also employ individuals for whom rigid, corporate policies are off-putting and generally not well received. To determine whether a mandatory vaccine policy is necessary and appropriate, employers may want to analyze practical considerations first:
1) If you choose to strongly recommend a vaccine, would you achieve 100% voluntary compliance among employees? What if you reimbursed employees for the cost of the vaccine, and made it easy for employees to visit a vaccination center?
2) Does your organizational culture tend to focus on community and customer health with success? Could you publish or provide vaccine information to employees, and then survey employees on whether they will voluntarily get vaccinated?
3) For the employees you think may not want to get vaccinated, would a personal phone call assist in the conversation prior to implementing mandatory policies?
4) If you decide to require vaccination, can you anticipate how you might make reasonable accommodations for employees who have disabilities or religious beliefs preventing vaccination?
5) How will you determine whether an employee has a disability under the ADA or a religious belief protected by Title VII?
6) What would constitute an “undue burden” in terms of reasonable accommodation of employees who don’t want to be vaccinated?
It will be beneficial for employers to analyze these issues before deciding whether to make employee COVID-19 vaccination mandatory.
If an employer does determine to mandate vaccination, a written policy compliant with the ADA and Title VII is important, and a strategic and legally compliant plan for analyzing the case of an employee who refuses to vaccinate should be implemented ahead of time.
Where does this advice come from? Let’s dig into the legal background for mandatory COVID-19 vaccinations.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the acceptability of an employer requiring Covid-19 vaccinations of employees without violating equal employment opportunity laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.
Prior to the issuance of this guidance, it was unclear whether mandatory Covid-19 vaccination of employees would be viewed as generally appropriate under the “direct threat” provisions of the ADA (that an unvaccinated employee could pose a “direct threat” to the health and safety of others). The EEOC guidance indicates, though with some caveats and restrictions, that mandatory vaccination policy for employees is permissible.
While we now have useful guidance from the EEOC on the issue of mandatory employee vaccination under federal laws within the EEOC’s purview, state laws or other case-specific federal laws may apply. There may also be OSHA or worker’s compensation issues that could arise based on an employer’s decision regarding Covid-19 vaccination.
Vaccination and the American Disabilities Act
While the decision to implement a mandatory vaccination policy must be individually analyzed and carefully implemented for each business, the recent EEOC guidance does provide additional clarity. As stated in the ADA, an employer may impose a “qualification standard” upon any position of employment, so long as that standard is consistent with job duties and business necessity, and does not unnecessarily screen out individuals with disabilities.
Requiring a Covid-19 vaccination would be a “qualification standard” – a condition of employment. If the qualification standard does screen out any individual with a disability, the employer must show that the un-vaccinated employee would pose a “direct threat to the health or safety of individuals in the workplace” in order to make vaccination a condition of employment.
In the case of Covid-19, the EEOC guidance tends to indicate that an unvaccinated individual could be deemed to pose a “direct threat” as set forth in the ADA in any situation where they were exposed to other employees or customers, and therefore an employer could impose mandatory Covid-19 vaccination as a qualification standard.
If an employer chooses to make vaccination mandatory for all employees, and it has an employee with a disability who refuses the vaccine, the employer must demonstrate that the unvaccinated person would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Such a determination requires a four-factor individualized analysis meant to accurately assess the actuality of the direct threat. In most situations involving any level of in-person human interaction, an employer could likely find that an unvaccinated employee poses a “direct threat” – that the employee would expose others to the virus at the worksite.
Even so, the employee may be excluded from the worksite or terminated only if the employer cannot make reasonable accommodations for them, allowing them to maintain their employment, without undue hardship to the employer.
Vaccination and Title VII of the Civil Rights Act
If an employee cannot be vaccinated due to their religious beliefs, Title VII requires that an employer must provide reasonable accommodation for the employee unless the accommodation would cause “undue burden.” Undue burden is defined as creating something beyond minimal cost or burden on the employer.
- In all cases, analysis on vaccination must be individualized and case specific. Voluntary compliance is ideal and will eliminate the need for the detail legal analysis.
- Employers can likely create mandatory COVID-19 vaccination policies for employees, but reasonable accommodations for disability or religious belief must be meaningful explored and implemented if reasonably possible.
- The background for considering the legality of mandatory vaccine policies is found in the ADA and Title VII of the Civil Rights Act. Beyond the EEOC, state laws or other case-specific federal laws may apply.
- Designing and implementing a mandatory vaccine policy requires legal guidance beyond this article.
Have questions? Want to better understand how the above impacts your outdoor recreation business or organization? We’d love to talk with you. Give us a call today.
Disclaimer: This blog post is not intended to provide legal advice, nor should it be viewed as such. Legal advice can only be provided based on specific facts. We recommend, as we must, that you consult an attorney before implementing any advice in this blog post. Receiving or viewing this blog post does not constitute an attorney-client relationship.