Permissibility of Requiring that Nonprofit Employees Receive a COVID-19 Vaccination

Category: Special Bulletins
Date: Dec 7, 2020 08:08 PM

Note: On December 16, the Equal Employment Opportunity Commission (“EEOC”) provided updated guidance concerning COVID-19 vaccinations. While that guidance confirms the legal analysis and conclusions provided in this bulletin, including that employers may permissibly require COVID-19 vaccinations under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), we recommend that employers use the information provided in this bulletin and the one we issued following the EEOC update in order to develop a comprehensive approach to COVID-19 vaccinations for employees.  

Given the recent news coverage concerning COVID-19 vaccines and the government’s distribution plan for such vaccines, many of our clients have inquired whether it will be permissible to require that employees be vaccinated for COVID-19. This question is important from a public health perspective, complicated from a legal one, and almost certain to create controversy.

This bulletin is intended to provide a high-level summary of our current legal analysis[1] on this issue, including on the following subjects: (1) the permissibility of requiring COVID-19 vaccinations; and (2) the exceptions to a vaccination requirement.

While this bulletin addresses each of these subjects in greater depth, Liebert Cassidy Whitmore’s general position on the subjects is as follows:

(1)     It is seemingly permissible for nonprofit employers to require that employees be vaccinated for COVID-19, so long as the requirement is narrowly tailored to cover only those employees who report to worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated; and

(2)     Nonprofit employers must engage employees with qualified disabilities or sincerely held religious beliefs[2] in a good faith accommodations process to determine whether they can be accommodated in such a way that will not pose a direct threat to the health and safety of others or an undue hardship on the agency.

Is It Permissible for a Nonprofit Employer to Require that Employees be Vaccinated for COVID-19?

Under the California Occupational Safety and Health Act, employers must provide their employees a healthy and safe workplace. To comply with this requirement, nonprofits likely possess authority to establish legitimate health and safety standards, policies, and requirements.

However, the authority to require vaccinations is limited, even where a nonprofit’s actions are legitimately related to protecting the health and safety of its workplace. Federal and state laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Fair Employment and Housing Act (“FEHA”)[3], require that mandatory vaccinations address the following:

(1)    Be job-related and consistent with the nonprofit’s business necessity;

(2)   Extend protections to employees who, because of a disability or religious belief, are unable or unwilling to be vaccinated; and

(3)   Provide such employees an accommodations process to determine whether they can perform their essential job functions in a way that does not pose a threat to the health and safety of the nonprofit’s workplace or impose an undue hardship on the nonprofit and its operations.

EEOC Guidance on the Permissibility of Requiring Employees to Receive Vaccinations

To date, the Equal Employment Opportunity Commission (“EEOC”), which enforces both the ADA and Title VII, has not specifically answered the question concerning the permissibility of requiring COVID-19 vaccinations. However, the EEOC has provided a framework by which to analyze the question.

That EEOC framework provides that employers may not “compel all of [their] employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic.”[4] This implies that employers possess authority to require vaccination for employees who do not have a qualifying disability or a sincerely held religious belief to the extent it is job-related and consistent with business necessity, as further discussed below.

Job-Relatedness and Consistency with Business Necessity

As a threshold matter, a nonprofit may not require vaccinations unless doing so is “job-related and consistent with business necessity.”[5] In order to satisfy this standard, a nonprofit must establish that it has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” to the health and safety of the workplace absent such a vaccination.

In the present public health emergency, the EEOC concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[6] Nonprofits likely may rely on such guidance in order to require vaccination for COVID-19 because of the potential threat that employees pose to the workplace if not vaccinated.

While the EEOC guidance suggests that employers seemingly possess authority to require vaccinations for their employees, the EEOC also limits the scope of such authority.  The EEOC recognizes that employees with qualifying disabilities under the ADA and employees with sincerely held religious beliefs under Title VII are entitled to certain statutory protections.[7] These protections entitle qualified employees to an accommodations process under which the employer must determine whether there is a reasonable accommodation that will allow the employees to continue to perform their essential job functions despite their inability or unwillingness to vaccinate.

Which Employees May be Entitled to an Accommodations Exempting Them from the Vaccination Requirements?

EEOC guidance provides that, under the ADA, an employer must provide a “reasonable accommodation”[8] to employees with qualified disabilities that prevents them from safely receiving a vaccine.[9] With respect to Title VII, the EEOC provides that an employer must provide a reasonable accommodation to employees who sincerely hold religious beliefs that preclude them from being vaccinated.[10]

However, the EEOC also provides that an employer is not required to provide an accommodation if doing so would compromise the health and safety of the employer’s workplace or if the accommodation would present an “undue hardship” to the employing nonprofit.[11] To the extent that an unvaccinated employee is not able to perform work remotely or outside of regular working hours, a nonprofit may reasonably determine that such an employee poses a direct threat to the health and safety of the workplace, and is therefore unqualified for a workplace accommodation under the ADA[12], Title VII and the FEHA.[13] However, the nonprofit must still make an individualized assessment as to the cost and difficulty of providing the employee an accommodation outside of the workplace in order to determine whether such accommodation would impose an undue hardship on the organization.[14]

Should a nonprofit employer receive a request for a medical accommodation under the ADA or religious accommodation under Title VII, the nonprofit should, as a matter of policy, require that the employee produce supporting information substantiating the employee’s qualifying disability or sincerely held religious belief and that such disability or religious belief precludes their vaccination.[15] If the employee does not cooperate with a nonprofit’s reasonable request for such supporting information, the nonprofit may deny the employee’s request.

Individualized Assessment for Reasonable Accommodations

If a nonprofit determines that an employee qualifies for protection under either the ADA or Title VII, it must analyze potential accommodations, taking into account the nature of the employee’s disability or religiosity, the health and safety threat posed by COVID-19, the conditions of the employee’s job, and the nonprofit’s budgetary and operational circumstances.

In the case of an employee who cannot be vaccinated because of a qualifying disability or sincerely held religious belief, a nonprofit should consider accommodations that will allow the unvaccinated employee to perform their essential job functions and will impose neither:

(1)          A direct threat to the health and safety of the nonprofit’s workplace and employees; nor

(2)          An undue hardship on the organization.

Given these significant limitations, a nonprofit should, at a minimum, consider the following accommodations:

(1)     Providing the employee the opportunity to telework from a remote location other than the nonprofit’s worksite or facility; and

(2)  Providing the employee a modified work schedule that would permit the employee to work during hours when there are no other unvaccinated employees in the nonprofit’s worksite or facility[16].

These accommodations would protect both the employee from the risk of infection as well as other employees, service recipients, and other nonprofit community members who may be exposed to the virus because of transmission by the unvaccinated employee.

Other accommodations, such as requiring the use of personal protective equipment (“PPE”) and implementing increased social distancing measures, may not remove the direct threat posed by an unvaccinated employee and are likely not reasonable.

Conclusion Regarding Nonprofit Employers’ Authority to Require COVID-19 Vaccinations under the ADA and Title VII             

While the EEOC states that employers covered by the ADA and Title VII may not “compel all of [their] employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic”[17], given the direct threat of COVID-19 to the health and safety of an employer’s workplace, nonprofits seemingly possess sufficient authority to require COVID-19 vaccinations for all employees who do not have a qualifying disability under the ADA or a sincerely held religious belief under Title VII and who report to work at nonprofit worksites and facilities.  

Considerations for Nonprofits with Represented Employees

In addition to the substantive limitations under the ADA, Title VII, and the FEHA, nonprofit employers with union represented employees may also need to navigate the bargaining obligations set forth under the National Labor Relations Act (“NLRA”) if they want to require their employees to be vaccinated.[18] Generally, the NLRA requires employers to provide employee organizations with notice and an opportunity to bargain any decision that directly relates to a matter within the scope of bargaining, and must do so before making such a decision.  The National Labor Relations Board (“NLRB”), which enforces the NLRA, has held flu vaccination policies within the scope of bargaining.[19] While an emergency exception could be possible depending on the circumstances of an employer’s policy, the law concerning this issue is unsettled.[20]  Accordingly, the safest course of action is for employers to bargain over the decision to require vaccinations. As such, nonprofits with represented employees that are interested in requiring vaccinations should reach out to their labor organizations to begin the negotiations process as soon as possible, even though vaccines are not likely to be widely available for all employees until the spring.

Conclusion

Until the federal and state agencies responsible for enforcing the statutory schemes implicated by the question of mandatory vaccinations issue guidance directly address this question, Liebert Cassidy Whitmore advises nonprofits that are interested in requiring the COVID-19 vaccination for their employees undertake the following actions:

(1) Limit the scope or applicability of such decision to employees who report to the nonprofit’s worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated (i.e., exclude employees who exclusively telework);

(2) Offer a good faith interactive process to any employees who, because of qualified disabilities, under either the ADA or the FEHA cannot receive a vaccination;

(3) Offer a good faith interactive process to any employees who, because of an established sincerely held religious belief, under either Title VII or the FEHA is not willing to receive a vaccination;

(4) Provide information to all employees who are subject to the vaccination requirement concerning the reason the nonprofit is requiring the vaccine; and

(5) Contact labor counsel to discuss bargaining obligations and any possible exceptions from such obligations as soon as possible.

Liebert Cassidy Whitmore attorneys are available to assist nonprofits that have any questions about this guidance.


[1] The analysis provided in this special bulletin is current as of this writing, but may change as the circumstances change as the agencies responsible for enforcing the pertinent statutes provide guidance on this subject.

[2] Religious organizations may limit employment based on religious belief.  As a result, this requirement may not apply to religious organizations.

[3] The Department of Fair Employment and Housing enforces the FEHA, which prohibits discrimination on the bases of both disabilities and religious beliefs. (See Gov. Code § 12940(a).) While the DFEH has not provided any specific guidance concerning the permissibility of requiring that employees be vaccinated for COVID-19, it is likely that the DFEH will follow the guidance provided by the Equal Employment Opportunity Commission (“EEOC”) on this question given the similar substantive requirements under FEHA, the ADA and Title VII.

[4] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[5] 42 U.S.C. § 12113.

[6] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.) (providing that “[b]ased on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.”); See also 29 C.F.R. § 1630.2(r).

[7] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[8] The ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities. (See 42 U.S.C. § 12112(b)(5)(A).)

[9] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[10] The EEOC authorizes employers to request that the employee produce supporting information to establish that the employee’s religious belief or practice is sincerely held. See EEOC “Section 12 Religious Discrimination” https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination (Uploaded on July 22, 2008), See also EEOC “EEOC Informal Discussion Letter”, https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-254 (Uploaded on December 5, 2012; Last updated on January 10, 2013.)

[11] 42 U.S.C. § 12112(b)(5)(4) (it is a form of discrimination to fail to provide a reasonable accommodation "unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . .")

[12] EEOC “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act” at 38, 8 FEP Manual (BNA) 405:7601 (2002) https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_39 (Uploaded on October 17, 2002.)

[13] We believe that the same analysis would disqualify an employee under the FEHA as it would under the ADA and Title VII.

[14] For the ADA, see 42 U.S.C. § 12111(10) (defining “undue hardship based on factors assessing cost and difficulty); For Title VII, the undue hardship standard is much less rigorous, and only requires that the employer show only a “more than de minimis” cost or burden. See 9 C.F.R. § 1630.15(d).

[15] Under the ADA, the agency should require that the employee provide written certification from the employee’s health care provider stating that the employee has a qualified disability and that the employee cannot safely take the vaccine because of the disability. See 29 C.F.R. § 1630.14(c); 29 C.F.R. § 1630.2(o)(3), and EEOC “Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations,” https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical (Uploaded on October 10, 1995.) Under Title VII, the agency should require provide written supporting information verifying that the employee sincerely holds a religious belief and that the religious belief prevents their vaccination. This information need not be provided by clergy or a congregant, but may be provided by anyone with knowledge of the employee’s religious beliefs that preclude their vaccination.

[16] Note: The guidance regarding this possible accommodation assumes that individuals vaccinated for COVID-19 cannot transmit the virus to others.  As of this writing, there is not public health guidance to support this assumption. Accordingly, employees should not provide this accommodation until there is additional guidance from public health authorities that vaccinated individuals cannot transmit the virus to others.

[17] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[18] The NLRA covers only enterprises which “affect interstate commerce,” as well as the United States Postal Service. The standard for “affecting commerce” is interpreted broadly, and has been found to extend over numerous different types of businesses, including private, for profit and non-profit educational institutions, hospitals and nursing homes, symphony orchestras, transit systems, newspapers, and horseracing and dog racing industries. (29 C.F.R. § 103.1 – 103.3; See also Windsor School, Inc. (1972) 199 NLRB 457, 200 NLRB. 991 (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts.) If you are not sure whether your nonprofit is subject to the NLRA, we recommend consulting legal counsel for further assessment on this issue.

[19] See Virginia Mason Hospital, (2012) 358 NLRB 64, finding such policies subject to bargaining, but that the union had waived its right to bargaining in this instances on the basis of a negotiated management rights provision.

[20] But see NLRB, Office of the General Counsel, Memorandum GC 20-04 (March 27, 2020): Case Summaries Pertaining to the Duty to Bargain in Emergency Situations, indicating that a flu vaccine policy related to an emergency situation particular to an individual employer; but was still subject in that case to bargaining.  

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