December 28, 2020

How Limiting Are the Limitations on Mandatory Employer Vaccination?

Nathan A. Adams IV

This week, the EEOC approved employers requiring employees to receive COVID-19 vaccination, subject to limitations. How limiting are the limitations? Case law applying them is thin, but generally treats them as narrow. In fact, an argument is taking shape that employers actually have a duty to require the vaccination of certain employees. Constitutional and additional statutory limitations arise if government mandates the vaccination and when government is the employer. Requiring proof of vaccination is preferable to private employers themselves vaccinating, although employers that vaccinate may be entitled to take advantage of state and PREP Act immunities.

Limitations on a Mandate

The two limitations on mandating vaccines that the EEOC has focused upon are these: (1) if the employee has a disability that prevents the employee from taking the vaccine the employee may be entitled to an exemption from mandatory vaccination or (2) if an employer receives notice that an employee's sincerely-held religious belief, practice or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an "undue hardship," which is defined as more than a de minimis cost to the operation of the employer's business.

Americans with Disabilities Act (ADA)

The ADA makes it unlawful for a covered employer to discriminate against a qualified individual on the basis of disability with regard to hiring, discharge and other terms and conditions of employment. The ADA also requires employers to provide reasonable accommodations to disabled employees to allow them to perform their essential job functions unless doing so what constitute an undue burden on the employer. 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 impairment, or (3) being regarded as having such an impairment.1

To make out a prima facie case under the ADA, the plaintiff typically must show (1) her employer is subject to the ADA; (2) the plaintiff was disabled within the meaning of the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation, and (4) the plaintiff suffered adverse employment action because of her disability. Many states have laws similar to the ADA that are usually interpreted consistent with it. Plaintiffs who have resisted mandatory vaccination have not fared well under this standard.

For example, an independent living skills specialist in Hustvet v. Allina Health Sys., 910 F. 3d 399 (8th Cir. 2018), a registered nurse in Chmura v. Monongalia Health Sys., No. 1:17cv222, 2019 WL 3767469 (N.D. W.V. Aug. 9, 2019), and a medical assistant in Eubanks v. Mercy Med. Ctr., Inc., No. WDQ-15-513, 2015 WL 9255326 (D. Md. Dec. 17, 2015), sued the hospitals that terminated them for disability discrimination when they refused mandated influenza vaccination, but none prevailed. The Hustvet court ruled that the plaintiff presented insufficient evidence that her allergies substantially or materially limited her ability to perform major life activities. The Chmura court ruled that the nurse failed to prove any contraindication that a latex-free vaccination would not resolve. Likewise, the Eubanks court ruled that the medical assistant's complaint contained no information about how her allergies substantially limited a major life activity.

Of course, the medical profession has more knowledge about influenza or rubella vaccination and their contraindications than it does about COVID-19 vaccination. On the one hand, the quick approval of the COVID-19 vaccine and uncertainty about its safety and side effects means courts may be less exacting of plaintiffs. On the other hand, the consequences and contagiousness of the COVID-19 favors defendants. In fact, the EEOC has conceded that employers have a powerful defense to ADA liability to the extent an unvaccinated employee poses a "direct threat" to others at the worksite, meaning a significant risk of substantial harm to their health or safety that cannot be eliminated or reduced by reasonable accommodation.2

The EEOC's announcement this week takes the direct threat posed by unvaccinated individuals almost for granted, but employers should still conduct the ordinary individualized direct threat assessment based on a reasonable medical judgment, using the most current medical knowledge and/or the best available objective evidence of the individual's present ability to safely perform the essential functions of the job.3 In this event, the employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm.4 The employer should also take into account the severity of the pandemic in an area, the employee's own health, the employee's job duties, and the likelihood that an individual will be exposed to the virus at the worksite.

The final step before the employer may take adverse action against an employee is to assess whether affording a reasonable accommodation to the employee would impose undue hardship on the employer.5 The EEOC states that the employee's particular job duties, prevalence in the workplace of employees who already have received COVID-19 vaccination, the amount of contact with others, whose vaccination status could be unknown, and Occupational Safety and Health Administration (OSHA) standards and guidance may impact the undue hardship consideration. Telework is the foremost potential accommodation, but a variety of others may be feasible such as leave under the Families First Coronavirus Response Act, FMLA or employer policy; reassignment; protective gear (e.g., masks and gloves); and infection control practices (e.g., social distancing, Plexiglas, hand washing, etc.).

The process of investigating workplace accommodation options that do not constitute an undue hardship should be flexible and interactive. The interactive process may include determining whether it is necessary to obtain supporting documentation about the employee's disability and considering the possible options for accommodation. Prematurely terminating this interactive process is actionable as in Ruggiero v. Mt. Nittany Med. Ctr., 736 Fed.Appx. 35 (2018). The plaintiff plausibly alleged a disability, so as to state a failure to accommodate claim with respect to required tetanus, diphtheria and pertussis vaccination. She proposed wearing a mask in lieu of vaccination, but her employer terminated her without proposing an alternative.

Title VII of the Civil Rights Act of 1964 (Tile VII)

Title VII prohibits an employer from discriminating against any employee on the basis of, among other categories, religion. The EEOC states that "because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief." Employers are justified in requesting additional supporting documentation if the employer has an objective basis for questioning either the religious nature or sincerity. Concerning the first justification, courts have ruled that strongly-held moral or philosophical convictions do not necessarily comprise a religion.

For example, when terminated for refusing to take an influenza shot or provide a medical or religious exemption, a healthcare employee unsuccessfully argued in Fallon v. Mercy Catholic Med. Ctr. of S.E. Pa., 200 F. Supp. 3d 553 (E.D. Pa. 2016), that his strong moral or ethical objections amounted to a religious belief protected under Title VII and that his termination was wrongful in violation of public policy. The court disagreed that the plaintiff's beliefs were religious or protected by Title VII, just as "sincere opposition to vaccination" was not protected in Brown v. Children's Hosp. of Philadelphia, 794 Fed.Appx. 226 (2020).

When Title VII protection attaches, the employer must provide a reasonable accommodation for the religious belief, practice or observance unless it would pose an undue hardship. The same is not always true under parallel state laws.6 In Robinson v. Children's Hosp Boston, No. 14-10263, 2016 WL 1337255 (D. Mass. 2016), the court ruled that exempting an administrative associate in the emergency department from mandatory influenza vaccination would cause undue hardship because if the hospital permitted her to forgo the vaccine due to her religious beliefs but keep her patient-care job, the hospital could have put the health of vulnerable patients at risk. The court added that allowing the plaintiff to avoid more vulnerable patients and not others would have been unworkable. The court ruled that the hospital reasonably accommodated the plaintiff by permitting her to attempt to find a non-patient-area position in the hospital and taking other steps.

The bottom line is that limitations on the ability of private employers to mandate COVID-19 vaccination under Title VII, the ADA, and parallel state laws are real but narrow. Employers vaccinating rather than requiring proof of vaccination is complicating. The CDC recommends that health care providers ask certain questions before administering the COVID-19 vaccine, which questions could elicit information about a disability. If asked by the employer or a contractor on the employer's behalf, they must be "disability related" and, ordinarily, "job-related and consistent with business necessity." Pre-vaccination questions could also touch on genetic information, which an employer may not solicit under the Genetic Information Nondiscrimination Act (GINA). All of this makes simpler requesting evidence of vaccination than vaccinating.

Public Employers

Mandatory vaccination implicates state and federal constitutional liberties such as under the Free Exercise Clause, Due Process Clause and Equal Protection and statutes such as the Religious Freedom Restoration Act (RFRA) when government is the vaccinator or mandates the vaccination. All 50 states have laws requiring schoolchildren to be vaccinated against various diseases, but typically offer some combination of medical, religious or philosophical exemption. Just a handful of states are without a religious exemption; 19 states offer philosophical exemptions. Ordinarily, states also permit exemptions for valid medical reasons such as documented allergy to a virus. Some argue that the exemptions are unnecessary, but this theory has been upheld in few jurisdictions.

Duty to Vaccinate

An argument is taking shape that employers have a duty to require employee vaccinations in some circumstances independent of any public mandate. This argument is premised in the first instance on the "general duty clause" or obligations imposed by OSHA on employers to ensure the workplace is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees."7 In addition, negligence claims may arise in circumstances involving especially vulnerable individuals with whom employers have special relationships (e.g., loco parentis). Employers will want to consider mandatory vaccination for these front-line workers and to the extent public authorities begin to call for or require mandatory vaccination.

PREP Act Immunity

Whether or not an employer requires employees to be vaccinated, many are considering education campaigns and making the vaccine available to employees at the worksite at low cost or for free or with incentives such as time off to nurse any side effects, financial rewards and/or expedited return to the worksite. Here too employers have defenses to liability. First, private employers may be able to benefit from immunities adopted by state executive order or legislation in response to the pandemic. Second, they may have immunity under the federal PREP Act. Even so, employers should consider simply requesting evidence of vaccination in lieu of vaccinating themselves or through a contractor.

The implementing preamble to the PREP Act states that a "covered person" protected by immunity includes a "program planner" which can be a "private sector employer."8 HHS has reiterated this point and indicated that a private sector employer should be protected against suit or liability for claims for death, physical, mental or emotional injury, illness, disability or condition, fear of such harm or need for medical monitoring, and damage to property, including interruption loss with respect to claims for loss caused by, arising out of, relating to, resulting from the administration to or the use by the vaccine. Courts have yet to vindicate this view and HHS could change course under a new administration.

The PREP Act certainly does not protect against employment claims such as under the ADA, Title VII, or GINA. Consequently, private employers should be cautious and turn to counsel for assistance with the decision to mandate or incentivize COVID-19 vaccination, to accommodate disabilities and religious objectors or to exempt employees and to do so in a manner that preserves the privacy of their employees' health information.


1 42 U.S.C. § 12102.

2 29 C.F.R. § 1630.2(r).

3 29 C.F.R. § 1630.2(r).

4 Id.

5 42 U.S.C. § 12112(b)(5)(A).

6 See Head v. Adams Farm Living, Inc., 242 N.C.App. 546, 775 S.E. 2d 904 (2015).

7 29 U.S.C. § 654(a)(1).

8 See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,202 (Mar. 17, 2020).

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