Given the recent news coverage concerning COVID-19 vaccines and the government’s distribution plan for such vaccines, many of our private school clients have inquired whether it will be permissible to require school 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.[1]
This bulletin is intended to provide a high-level summary of our current legal analysis[2] 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 schools 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 school worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated; and
(2) Schools must engage employees with qualified disabilities or a sincerely held religious beliefs[3] 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 school.
Is It Permissible for Schools to Require that Employees be Vaccinated for COVID-19?
Under the California Occupational Safety and Health Act, schools must provide their employees a healthy and safe workplace. To comply with this requirement, schools likely possess authority to establish legitimate health and safety standards, policies, and requirements.
However, the authority to require vaccinations is limited, even where a school’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”)[4], require that mandatory vaccinations address the following:
(1) Be job-related and consistent with the school’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 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 school’s workplace or impose an undue hardship on the school 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.”[5] This implies that schools 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 school may not require vaccinations unless doing so is “job-related and consistent with business necessity.”[6] In order to satisfy this standard, a school 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.[7] Schools 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 schools 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.[8] These protections entitle qualified employees to an accommodations process under which the school 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”[9] to employees with qualified disabilities that prevents them from safely receiving a vaccine.[10] 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.[11]
However, the EEOC also provides that a school is not required to provide an accommodation if doing so would compromise the health and safety of the school’s workplace or if the accommodation would present an “undue hardship” to the school.[12] To the extent that an unvaccinated employee is not able to perform work remotely or outside of regular working hours, a school 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[13], Title VII and the FEHA.[14] However, the school 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 school.[15]
Should a school receive a request for a medical accommodation under the ADA or religious accommodation under Title VII, the school 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.[16] If the employee does not cooperate with a school’s reasonable request for such supporting information, the school may deny the employee’s request.
Individualized Assessment for Reasonable Accommodations
If a school determines that an employee qualifies for protection under either the ADA or Title VII, the school 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 school’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 school 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 school’s workplace and employees; nor
(2) An undue hardship on the school.
Given these significant limitations, a school should, at a minimum, consider the following accommodations:
(1) Providing the employee the opportunity to telework from a remote location other than an school 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 school worksite or facility[17].
These accommodations would protect both the employee from the risk of infection as well as other employees, students, parents and other members of the school community who may be exposed to the virus.
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 Schools’ 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”[18], given the direct threat of COVID-19 to the health and safety of schools, schools 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 school worksites and facilities.
In addition to the substantive limitations under the ADA, Title VII, and the FEHA, schools with unionized employees that want to require employees to be vaccinated, will need to consider bargaining obligations prior to implementing requirement. We recommend speaking with counsel about whether any exceptions to bargaining obligations may be applicable.
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 schools that are interested in requiring the COVID-19 vaccination for their employees to undertake the following actions:
(1) Limit the scope or applicability of such decision to employees who report to school 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 are not willing to receive a vaccination;
(4) Provide information to all employees who are subject to the vaccination requirement concerning the benefits of the vaccine; and
(5) For employees with unionized employees, contact counsel to discuss bargaining obligations and any possible exceptions from such obligations as soon as possible.
Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions about this guidance.
[1] A separate, forthcoming Special Bulletin will address student vaccinations.
[2] The analysis provided in this special bulletin is current as of this writing, but may change as the circumstances change and as the agencies responsible for enforcing the pertinent statutes provide guidance on this subject.
[3] Religious schools may limit employment based on religious belief. As a result, this requirement may not apply to religious schools.
[4] 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 subd. (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. Please note that schools incorporated as religious non-profits are not subject to the FEHA but must comply with the ADA and Title VII, though there are important exceptions.
[9] The ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities. (See 42 U.S.C. § 12112 subd. (b)(5)(A).)
[12] 42 U.S.C. § 12112 subd. (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 . . .”)
[14] We believe that the same analysis would disqualify an employee under the FEHA as it would under the ADA and Title VII.
[15] For the ADA, see 42 U.S.C. § 12111 subd. (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 subd. (d).
[16] Under the ADA, the school 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 subd. (c); 29 C.F.R. § 1630.2 subd. (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 school 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.
[17] 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 no public health guidance to support this assumption. Accordingly, schools should not provide this accommodation until there is additional guidance from public health authorities that vaccinated individuals cannot transmit the virus to others.
