COVID-19 in Employment: Can Businesses Require Employee Vaccinations?

By Laura Jacobsen of McDonald Carano Law

With the recent announcement that the United States has begun distribution and administration of COVID-19 vaccines (the first shipment landed in Nevada on December 14, 2020), businesses across the nation are grappling with whether to require their employees to get vaccinated.  Whether to impose such a requirement should take into account if a vaccine is currently available to employees, as well as employment laws and regulations.

In Nevada, an employer deciding whether to require employee vaccination must consider the requirements of the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII), federal laws which cover all employers with at least 15 employees. 

Under the ADA, a vaccination is considered a medical exam.  For that reason, it can be required only if it is job-related and consistent with business necessity. If an unvaccinated individual is a “direct threat” to the health and safety of others, a vaccine mandate is permissible.  While the EEOC, the federal agency charged with enforcing the ADA, has determined that COVID-19 is itself a “direct threat,” the EEOC has not yet updated its guidance with respect to whether an employer may require employees to vaccinate.  In the retail space, it seems a vaccination requirement would meet ADA standards due to the possibility of transmission between employees and customers.

Once an employer institutes a vaccination requirement, it must be prepared to address employee accommodation requests.  An employer has a duty to reasonably accommodate: (1) disabilities under the ADA, and (2) sincerely held religious beliefs under Title VII.  An employer should therefore engage in the “interactive process”—a conversation about the employee’s precise limitations and requested an accommodation—with any employee who states they cannot undergo vaccination because of religion or a medical issue.  The interactive process may involve requiring the employee to provide a doctor’s note explaining the disability or other information verifying the religious belief or practice (though employers should generally tread lightly in questioning the sincerity of an employee’s religious belief).

Whether the employer can accommodate an employee and what that accommodation may be will depend upon the facts and circumstances of each case.  For example, perhaps it is possible to assign an employee who cannot be vaccinated to duties that the employee can perform from an isolated room where they will not physically interact with co-workers or the public.  In other cases, an accommodation exempting the employee from vaccination may not be reasonable because it would pose a “direct threat” to others or it would impose an undue burden on the business.

It is important to note that there are no other exceptions under federal or Nevada law.  A business is not required to accommodate political, secular, or medical beliefs about vaccines, and an employer is generally permitted to rely upon the FDA’s determination that vaccines are safe. For that reason, a business that implements a vaccine mandate that is job-related and consistent with business necessity does not need to accommodate an employee’s refusal to get vaccinated based on non-religious beliefs, even strongly held ones.  In fact, a business could legally discipline or terminate employment based upon this refusal under most circumstances.

As an alternative to requiring vaccination, some business may consider encouraging—or even incentivizing—vaccination.  This approach would largely eliminate legal risk under the ADA and Title VII but should be balanced against an employer’s duty to provide a safe workplace and the ongoing risk of transmission of COVID-19.

Finally, whether the federal, state or local government recommends or requires vaccination of certain workers will necessarily impact the analysis.  (Hopefully the EEOC will issue COVID-19 vaccination guidance soon.)  It will also impact a business’s eligibility for the so-called COVID-19 “liability shield” contained in Senate Bill 4 from the 2020 Special Legislative Session, based upon whether a business is in “substantial compliance” with applicable government COVID-19 directives. 

In the meantime, each business should consider its overall facts and circumstances before deciding whether, and how, to implement a mandatory vaccination policy.  In addition, a business should periodically review any policy as vaccines become more widely available, the pandemic waxes or wanes, and as government authorities publish guidance.  What may be necessary or appropriate in January, may or may not be appropriate or necessary in July.  (Let’s hope so.)