Currently, one of the most controversial directives from health care institutions, such as hospitals and nursing homes, to their health care employees is a mandatory vaccination requirement. Employers see this requirement as a way to keep their patients seeking treatment safer by requiring those treating them to be vaccinated. This requirement also can help keep the health care employees safe by providing them an extra line of defense when dealing with sick patients. While there are strong public policy reasons behind mandatory vaccinations, courts and the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces civil rights laws on workplace discrimination, recognize situations in which employees should be exempt from receiving vaccines.
Two exceptions are well recognized to mandatory vaccinations including an employee’s sincerely held religious belief conflicting with receiving the vaccination or some medical reason/disability that prevents the employee from receiving the vaccination. For example, a sincerely held religious belief against vaccinations could be believing that nothing unnatural should be put into the body and can arise from traditional mainstream religious beliefs or even those sincerely held beliefs in non-religious practices. An example of a medical disability could be an allergy to a component in the vaccine. However, simply because an employee has an exemption from the vaccination does not mean they are free from taking other precautions to prevent the spreading of diseases and influenza. Cases reviewing an employer’s ability to require mandatory vaccinations show that employers must provide reasonable accommodations to the employees unable to abide by the mandatory vaccination. If an employer fails to provide reasonable accommodations and terminates employees failing to comply with vaccination requirements, employers may be guilty of violating Title VII of the Civil Rights Act.
Accommodations that employers provide to employees need to be determined on a case-by-case basis. For example, an accommodation based on a medical reason, such as an allergy, would need a different accommodation than a request for an exemption based on religious purposes. An employee with an allergy might be able to get a different version of the vaccine, but an employee with a religious belief disfavoring or precluding vaccinations does not have that same option. In the instance of an employee requesting a religious accommodation to receiving a vaccination, the more suitable solution might be requiring the employee to wear a mask which is an alternative that still provides protections to patients and other staff. The accommodation must be provided unless it would place an “undue hardship” on the employer. Undue hardship, defined by Title VII, is simply “more than de minimis” to the employer’s operation which is a lower standard than required by the ADA. Requiring unvaccinated health care employees with a religious objection to wear masks at all times, or at least when dealing with clients, would not be considered an undue hardship for an employer. However, the day-to-day practice of when an unvaccinated employee is allowed to remove his/her mask in the workplace to protect other employees and patients is bound to be a challenge for employers. Each accommodation needs to be tailored to the applicable situation.
In trying to match needed accommodations with an employee’s refusal to not be vaccinated, employers have the ability to question an employee’s claim of exemption. An employee may need to provide a note from a doctor about a medical issue that precludes him/her from being vaccinated, and can be asked what his/her religious belief is that precludes the vaccination. For religious exemption purposes, the employee only must provide a statement of his/her own sincerely held belief. If an employer has an objective basis for questioning the sincerity of the religious claim, then the employer is justified in seeking additional supporting information regarding the exemption. Should an employer decide to question the truth of the employee’s religious exemption claim, the employer must be careful because a court will likely view the failure to provide an accommodation as discrimination, unless there is truly a legitimate reason for the outright refusal of the request.
While there is no current Missouri law placing a ban on employers from making vaccinations mandatory, employers who implement such a policy need to ensure there are processes for an employee to request an accommodation to being vaccinated and that the employer does not automatically terminate the employee for refusing to be vaccinated. Strong encouragement to receive the vaccine, payment of vaccinations by the employer, or educational programs highlighting the benefits of getting vaccinated can move the vast majority of health care employees to get vaccinated. Then, healthcare employers can navigate the facts surrounding any remaining employees who refuse to be vaccinated balancing the protection of patients and other staff with the employees’ protected rights.