Excerpted from a Fredrikson & Byron PA blog by Robert C. Boisvert and Erin M. Edgerton

Once there is a COVID-19 vaccine, can an employer mandate that its employees be vaccinated?

Answer:


In most cases, yes, if the employer allows for religious and disability exemptions, but even then, it should proceed cautiously.

As the world continues to wait for a COVID-19 vaccine, many businesses are considering what a vaccine would mean for their workplace. While a vaccinated workforce could benefit businesses and employees, employers must be mindful of their obligations under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), and similar state and local laws.

For covered employers, these statutes require the employer to grant an exemption from becoming vaccinated based on an employee’s disability or sincerely held religious belief, unless the exemption would cause the employer undue hardship. What constitutes an undue hardship depends on the facts and circumstances. The test for what constitutes an undue hardship based on religious belief is fairly low, namely, would the accommodation impose more than a minimal burden on operation of the business. On the other hand, the test is higher in the case of disability and focuses on whether the requested accommodation involves significant difficulty or expense in light of the particular employer’s resources and circumstances.

There may be other legal and practical limitations as well. For example, a unionized employer might not be able to unilaterally require vaccinations under the terms of the collective bargaining agreement. As a practical matter, mandating vaccines may provoke an employee backlash and morale problems, including legitimate unease about the safety and effectiveness of fast-tracked vaccines.

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