Following are key sections from a Congressional Research Service report on legal challenges to employer mandates for vaccines.
While federal employment anti-discrimination law does not bar employers from requiring vaccinations, it does require employers to make certain exemptions for employees with disabilities or religious concerns. The ADA and the Rehabilitation Act of 1973 (applying ADA standards to federal employers and grant recipients) require employers to make changes to work rules for some employees with disabilities. These laws would apply to employer vaccine mandates. Disability laws also restrict certain medical inquiries. Second, Title VII of the Civil Rights Act of 1964 requires employers to take into account workers’ religious objections to vaccination and health concerns of pregnant employees.
Title VII and federal disability protections apply to most state, federal, and private employers. These laws have a number of exemptions. Of particular relevance, neither the ADA nor Title VII applies to employers of fewer than 15 workers. To date, there is little case law regarding how these statutes might apply to COVID-19 vaccination policies, but case law concerning other vaccination policies, along with EEOC guidance concerning COVID-19 specifically, may be instructive.
Reasonable Accommodations for Employees with Disabilities
In the context of COVID-19, some workers may request an exemption from mandatory vaccination because of a medical condition. If an employee’s medical condition amounts to a disability—that is, an “impairment that substantially limits one or more major life activities”—then the ADA or the Rehabilitation Act apply, barring employers from taking adverse action against a worker because of disability. Further, federal disability law requires employers to provide requested reasonable accommodations unless they would impose an undue hardship on the employer. In considering an accommodation request, an employer must assess whether a disability precludes vaccination, available alternatives, and (in the case of an infectious disease) possible threats from vaccine exemptions.
Courts’ Assessments of Mandatory Vaccination Under Federal Disability Statutes
Courts have yet to assess mandatory vaccine requirements during the COVID-19 pandemic, but they have occasionally reviewed challenges to mandatory flu vaccination requirements under civil rights statutes. In many cases employers have prevailed, including when an employee did not prove that she had an alleged allergy and did not seek out available hypoallergenic vaccines. In another case, a court concluded that an employee could not show she had a disability if she did not prove that her allergy substantially limited a major life activity.
In other circumstances, judges have looked more favorably on an employee’s requests. The Third Circuit concluded that severe anxiety over an injection might qualify as a disability, at least in the case of a nurse who refused a tetanus, diphtheria, and pertussis vaccine. The court held that a plaintiff had sufficiently raised an ADA claim, given that she proposed wearing a mask instead of getting a vaccine and her employer rejected the offer without proposing any alternative.
Religious Accommodations Under Title VII
Title VII similarly employers to accommodate workers’ religious practices unless they impose an “undue hardship on the conduct of the employer’s business.” As a general matter, this Title VII provision applies when an employee’s religious belief or practice conflicts with a job requirement.
In the context of vaccine objections, courts have examined a variety of religious beliefs and possible accommodations. In one such case, a Muslim worker in a Boston hospital sought an exemption to a flu vaccine citing concerns about pork ingredients. The defendant generally accommodated employees’ opposition to pork-based ingredients with a gelatin-free flu vaccine. But while this accommodation resolved other workers’ religious concerns, plaintiff believed many vaccines were “contaminated.” The hospital also tried to accommodate plaintiff by finding her a position outside of patient care, but did not succeed. The court held that the hospital had reasonably accommodated plaintiff when it helped her seek an alternate position and held, in the alternative, that retaining her would have imposed an undue hardship. The record showed the hardship of infection risk, the court concluded, because it documented “the Hospital’s understanding of the medical consensus on influenza vaccination” for health care workers.
In the Title VII accommodation context, courts have held that an “employer suffers undue hardship when required to bear a greater than de minimus [sic] cost or imposition upon co-workers” for religious adjustments. Whether an accommodation is an undue burden takes into account other employees’ rights, efficiency, cost, and other considerations. The Supreme Court has explained that Title VII does not require accommodations that come “at the expense of others.” For example, when an employee sought a particular work schedule to accommodate Sabbath observance, the Court concluded that Title VII did not require an employer to modify other workers’ seniority rights to provide the accommodation.
In further defining what qualifies as a religious practice, EEOC regulations include “moral or ethical beliefs . . . held with the strength of traditional religious views.” This encompasses idiosyncratic beliefs, which “no religious group espouses,” or those “the religious group to which the individual professes to belong may not accept.” Ordinarily, the EEOC recommends, employers should “assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” But if there is “an objective basis for questioning either the religious nature or the sincerity of a particular belief,” the employer may request additional supporting information.
Courts have considered a range of beliefs. For example, a district court in Ohio found it “plausible” that a hospital employee refusing an animal-based flu vaccine “could subscribe to veganism with a sincerity equating that of traditional religious views,” given that she cited Bible verses as support.
In other cases, courts have concluded that an objector’s beliefs, however strongly held, were not religious in nature and thus did not qualify for legal protection. For example, the Third Circuit, considering an objection to a mandatory flu vaccine, concluded that an employee’s “personal belief” that “the flu vaccine may do more harm than good” amounted to “a medical belief, not a religious one” under Title VII. Although the employee cited a passage attributed to Buddhism in his complaint, he did “not belong to any religious organization.” And the employee’s belief that “one should not harm their [sic] own body” was, in the court’s view, an “isolated moral teaching” rather than “a comprehensive system of beliefs.” In a similar vein, the Second Circuit rejected a religious challenge in another context, school vaccination requirements. It upheld a finding that parents’ “strong convictions concerning the necessity of a ‘natural existence,’” grounded in “scientific and secular theories” were not religious.