?Companies in some sectors, such as health care, may feel legally compelled to maintain vaccine requirements even after the pandemic’s public health and national emergencies end on May 11. But some employers may choose to drop the requirements because—as Susan Wiltsie, an attorney with Hunton Andrews Kurth in Washington, D.C., noted—vaccines are not as effective at preventing the spread of COVID-19 as public health officials originally predicted. In addition, a pending Supreme Court case may make it more difficult for employers to defend themselves against religious discrimination claims. There also may be pushback from employees if businesses try to maintain the requirements.
Other employers may continue to require or encourage vaccination to help keep their workforces safe and healthy, Wiltsie said.
As a practical matter, “[t]he analysis has changed because the information from public health authorities has changed,” Wiltsie added. “That impacts whether employers choose to maintain mandates.”
When Employers Might Choose to Keep Vaccine Requirements
Rules from the Centers for Medicare & Medicaid Services still require Medicare- and Medicaid-certified providers and suppliers to have mandatory vaccination policies.
The final Occupational Safety and Health Administration rule for managing COVID-19 in health care is undergoing White House review and isn’t expected to include a vaccine requirement. “However, health care employers may decide to continue to enforce vaccine mandates already in place as an added layer of risk mitigation,” Wiltsie said.
Depending on the workplace, maintaining vaccine requirements may be a good idea, she added.
Employers that might continue to require vaccination, depending on state and local laws, could include child care facilities and businesses in the restaurant and hospitality sectors, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.
However, Michael Shimada, an attorney with Baker McKenzie in Palo Alto, Calif., cautioned that some states have outlawed public-sector mandates.
Requests for Religious Accommodation Have Been Common
Exceptions to vaccine requirements must be made for employees with reasonable religious- or disability-based accommodation requests, so long as they don’t result in an undue hardship. Shea said relatively few employees have sought disability-related accommodations, but many more have asked for religious accommodations.
“One large employer I’m aware of received about 15 requests companywide for disability-related accommodations but thousands of requests for religious accommodations,” she said.
Distinguishing between valid and invalid disability accommodation requests is straightforward because the employer can obtain medical documentation in response to the requests, Wiltsie said.
But “weeding out illegitimate religious accommodation requests is extremely difficult,” she said, noting that even employers that followed the Equal Employment Opportunity Commission’s religious accommodation guidance to the letter have been sued.
The Changing Nature of Exceptions to Mandates
Courts may or may not be receptive to claims that vaccine mandates were unlawful.
“It’s hard to say. So much depends upon which judge hears the case and also depends upon when the decision was made to require vaccination,” Wiltsie said.
The nature of what constitutes a reasonable exception to a vaccine requirement may be changing, based on what is now known about vaccines and the Supreme Court possibly making the standard for employers’ defense against religious accommodation requests more stringent.
When defending an accommodation denial case under the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964, an employer currently must establish that granting the request would impose a significant difficulty or expense for disability accommodations or more than a de minimis cost for religious accommodations. Although these standards are both referred to as “undue hardship,” the standard for showing an undue hardship currently is much higher for disability accommodations than for religious accommodations.
When employers began implementing vaccine requirements immediately after vaccines became available, the understanding from public health officials was that most vaccinated employees would not get COVID-19 or would not carry a sufficient level of the virus to transmit it to others, Wiltsie said.
“As such, strong arguments existed that it was an undue hardship and more than a de minimis cost to permit employees to be unvaccinated in the workplace,” she said. “Now that we know how easily some variants can spread among vaccinated and unvaccinated, these hardship and cost arguments are less clear-cut.”
In addition, COVID-19 treatments have improved significantly since the pandemic’s onset. Wiltsie said that cases originating from early in the pandemic will be the easiest for employers to defend.
No matter when the decision was made to deny a religious accommodation request, the de minimis cost burden is relatively easy to satisfy, she noted. This may change if the Supreme Court decides this year to change the applicable standard for denying religious accommodation requests.
The court is considering whether to change the “undue hardship” standard in religious accommodation cases brought under Title VII from the de minimis cost standard to the more stringent “significant difficulty or expense” standard that applies in ADA accommodation cases.
The high court is widely expected to switch to applying the latter standard to religious accommodation requests, Shimada said. If the Supreme Court does, employers will find it more difficult to justify denying an employee’s religious accommodation request, he noted.
As for constitutional challenges against employers for denying religious exemptions, the 6th U.S. Circuit Court of Appeals on March 14 ruled that a company wasn’t a state actor when it sold products to the federal government and imposed a vaccine mandate because the government required it to do so as a federal contractor.
Voluntary Vaccination Is an Alternative for Some Employers
Employers not in health care or other industries that are required to mandate vaccines should consider encouraging—but not requiring—employees to be vaccinated or boosted, Shea said.
But if the law does require an employer to mandate vaccination, the employer should be relatively lenient in considering and granting requests for reasonable accommodations based on disability or religious beliefs, she added.
Nonetheless, Shea said that an employer should be able to continue requiring reliable, specific supporting medical information before granting a disability-based accommodation request if the need for accommodation isn’t obvious, or a sincerely held objection that is truly religious in nature before granting a religious accommodation request.