As we anxiously await the roll-out of the COVID-19 vaccine, employers are undoubtedly wondering if they can or should make the vaccine mandatory. Currently, there is no law banning such a mandate. However, if an employer puts such a mandate in place, it must consider making exceptions in compliance with Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA). Note: Title VII and the ADA only apply to employers with 15 or more employees.
Specifically, employees who object to a vaccine based on a sincerely held religious belief may be entitled to an exemption under Title VII. Likewise, an employee may be entitled to an exemption based on an ADA disability that prevents the employee from taking the vaccine. An employer can deny an employee’s religious or medical exemption request if the employer can prove the exemption would impose an undue hardship on the employer or pose a direct threat to the health and safety of others. Determining whether an undue hardship or direct threat exists is a very fact-intensive, case-by-case inquiry. Health care providers, first responders, schools, nursing homes and other business that service high risk populations or work in high risk environments will likely pass the undue hardship/direct threat test.
Because of the potential legal complications with mandating a vaccine, employers may opt instead to establish a policy aimed at encouraging, rather than mandating, employees to get vaccinated. The encouragement can take the form of setting up free on-site vaccination clinics and/or offering incentives to employees who get vaccinated. See CDC guidance on Promoting Vaccination in the Workplace. https://www.cdc.gov/flu/business/promoting-vaccines-workplace.htm#anchor_1554819279614.