Employers considering whether to adopt a mandatory vaccine policy should be alert to recently-enacted and pending legislation regulating workplace vaccine policies in certain states. As we reported last month, the Equal Employment Opportunity Commission (EEOC) has issued guidance for employers to consider before adopting a mandatory vaccine policy.
The EEOC takes the position that employers may implement a mandatory vaccine policy as long as the policy allows for exceptions to provide a reasonable accommodation if the employee has a covered disability under the Americans With Disabilities Act (ADA) that prevents the employee from getting a COVID-19 vaccine. Similarly, under Title VII of the Civil Rights Act, an employee may be entitled to a reasonable accommodation from a mandatory vaccination requirement if the employee has a sincerely held religious belief, practice or observance that prevents the employee from taking a COVID-19 vaccine. If an employee cannot take a COVID-19 vaccine because of a disability or sincerely held religious belief, practice or observance, the EEOC states it is lawful for an employer to exclude the employee from the physical workplace if no other reasonable accommodation is possible.
But remember to be mindful of state-specific COVID-19 vaccine regulations. For example, California and New Jersey have issued guidance regarding mandatory COVID-19 vaccine policies that largely mirror the EEOC’s guidance on the topic. The California Department of Fair Employment and Housing has stated that employers may require employees to receive a COVID-19 vaccine before entering the workplace if the following three conditions are met:
- The employer does not discriminate against or harass employees or applicants on the basis of a protected characteristic;
- The employer provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
- The employer does not retaliate against anyone for engaging in protected activity, like requesting a reasonable accommodation.
New Jersey has issued guidance that says employers may require employees to receive a COVID-19 vaccine before returning to the workplace, unless:
- The employee cannot get the vaccine because of a disability;
- The employee’s doctor has advised them not to get the vaccine while pregnant or breastfeeding; or
- The employee has a sincerely-held religious belief, practice or observance that precludes them from getting a COVID-19 vaccine.
Now, however, states like Ohio, Oklahoma, Tennessee and Wisconsin have introduced legislation that would severely limit an employer’s ability to implement and enforce a mandatory vaccine policy. A bill was recently introduced in the Ohio House of Representatives that would permit employees to refuse an employer-mandated COVID-19 vaccination for certain broadly stated reasons: the “Vaccine Choice and Anti-Discrimination Act.” Under the bill, an employee would simply need to give his or her employer a written statement or verbal declaration that includes at least one of the following reasons for declining a COVID-19 vaccine: medical contraindications, natural immunity or reasons of conscience (including religious convictions).
If the bill is enacted into law, it would severely limit an employer’s ability to mandate COVID-19 vaccinations for its workforce. The law would also prohibit discriminatory policies targeted at those who are not vaccinated. As an example, the proposed law says an employer would not be permitted to require unvaccinated employees to wear a mask while not imposing the mask obligation on vaccinated employees. An employer would also be unable to discriminate against an employee or segregate an employee from the rest of the workforce for refusing to get a COVID-19 vaccine. Of course, the bill is likely to be controversial and will almost certainly face pushback from other Ohio lawmakers. Although it is unclear whether the Ohio legislature would pass this bill or if Gov. Mike DeWine would sign it into law, employers in Ohio should monitor this bill’s progress in the coming weeks and months.
Employers should consult with counsel when crafting and enforcing a mandatory vaccine policy.