Employment Law Alert



Businesses have a duty to provide a safe environment for both their customers and employees. Due to the rising number of COVID-19 cases and the spread of the highly transmissible Delta variant, many employers are implementing mandatory vaccination policies to safeguard the health and well-being of their workforce. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), federal law does not prevent an employer from requiring employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and other workplace laws. Of course, employers must ensure that their policies do not disproportionately affect employees based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information unless there is a legitimate non-discriminatory reason.

Employers may implement mandatory vaccination policies based on the EEOC’s guidance and absent any conflicting state or local laws. This short article provides practical guidance to ensure your policies are administered appropriately.

What does a mandatory vaccination policy require?

Employers can require proof of the COVID-19 vaccination as a condition of physically returning to the workplace, provided they make reasonable accommodations for employees based on sincerely held religious beliefs or disability-related reasons. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might be required to wear a face mask, work at a social distance, work a modified shift, be tested periodically for COVID-19, be given the opportunity to work remotely or accept reassignment.

Under Title VII, sincerely held religious beliefs do not include social, political, or economic philosophies or preferences. If an employee does not get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, the employer must provide reasonable accommodation to that employee unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Different tests are used for the undue hardship determination depending on whether the accommodation requested is based on a disability or religious belief.

If an employer elects to implement a mandatory vaccination policy, the employer should notify its employees that a vaccination policy is being implemented and provide them with an opportunity to request an exemption from the vaccination requirement, without fear of retaliation. As part of the vaccination policy, employers should develop and implement an interactive process with employees to determine if a reasonable accommodation can be provided to qualifying staff members.

How should employers review requests for reasonable accommodation?

If an employee requests an exemption from the mandatory vaccination policy, the employer should engage in a flexible, interactive process to review the employee’s request and the potential for reasonably accommodating the employee. This may include determining whether it is necessary to obtain supporting documentation about the employee’s disability or religious belief. Employers may consider and discuss supporting documentation with employees as part of the interactive process. Employers should consider requests for reasonable accommodation on an individualized basis, with consistent non-discriminatory outcomes.

Once it is determined that an accommodation is necessary, employers should work with employees to agree upon a reasonable accommodation for the employee to continue working, unless doing so will pose an undue hardship for the employer and/or a direct threat to the health or safety of others.

How should employers consider requests for reasonable accommodation related to a disability?

For employees with disabilities, employers suffer an undue hardship when there is a significant difficulty or expense that would result from the accommodation. Employers claiming an undue hardship for accommodating someone with a disability should be able to articulate the significant difficulty or expense.

Where a mandatory vaccination policy is job-related and consistent with a business necessity, employers may determine a reasonable accommodation cannot be provided to an employee with a disability because it would result in a direct threat to their workplace. The employer must engage in a multi-factor assessment to determine whether the vaccination exemption would result in significant risk or substantial harm that cannot be eliminated or reduced by reasonable accommodation. For example, in determining that a direct threat exists an employer must consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

How should employers consider requests for reasonable accommodation related to a sincerely held religious belief?

EEOC guidance explains that the definition of religion is broad and protects a variety of beliefs. Therefore, employers should generally assume that requests for religious accommodations are based on sincerely held beliefs, practices, or observances. However, if an employer is aware of facts that provide an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer is justified in requesting additional supporting information. Additionally, the employer should always engage in an interactive discussion with the requesting employee. Employers should consider all possible reasonable accommodations and determine whether those would impose an undue hardship on the employer’s business.

The undue hardship standard for reasonably accommodating employees based on religious beliefs is less strict than the undue hardship standard for employees with disabilities. If the reasonable accommodation for a sincerely held religious belief would result in more than minimal cost or burden on the employer, it is considered an undue hardship. Employers should consider and be able to articulate the reasons for any undue hardship determination under both the ADA and Title VII.

Can an employer exclude an employee from work or terminate their employment?

If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and a reasonable accommodation cannot be provided, an employer may exclude the employee from physically entering the workplace. Before terminating the employee, employers should determine if any other rights apply under the equal employment laws or other federal, state, or local laws. Employers may wish to consult with legal counsel regarding whether an employee should be terminated upon completion of the interactive process.

How can an employer ensure employees are adhering to the vaccination policy?

Employers can require proof of vaccination so long as it does not include any other medical information. Vaccination documentation should be kept confidential and stored separately from the employee’s general personnel files.

Another consideration is whether employees should be paid for the time and resources expended to get vaccinated pursuant to a mandatory policy. While the U.S. Department of Labor has not provided any specific guidance regarding whether employees must be paid for time spent obtaining a mandatory vaccination, employers adhering to best practices should pay employees for the time spent in getting the vaccine. At a minimum, employers should pay employees for their time if the vaccination occurs when the employee would otherwise be working. Additionally, employers should consider state wage and hour laws to determine whether employees are entitled to any reimbursement for their time and expenses related to receiving a mandatory vaccination.


Conner & Winters assists various clients with employment policies and considerations and is able to assist in developing and implementing policies to help safeguard your company. We look forward to helping you ensure your workforce is safe by answering questions or offering assistance.