Can Employers Legally Require Employee COVID-19 Vaccinations?

Summer Murshid & Gregory Stratz

On January 13, 2022, the Supreme Court of the United States issued two decisions regarding two of the current vaccine mandates issued by the Occupational Safety and Health Administration (“OSHA”) requiring all employers with at least 100 employees to either require their employees to be vaccinated or undergo regular testing for COVID-19 and the Center for Medicare and Medicaid Services (“CMS”) requiring all health organizations receiving funding from Medicare or Medicaid to have each and every one of its employees vaccinated.

As employees and employers continue to navigate the return to work dynamic in the ever-changing COVID era, there may be questions about which employers are covered by different mandates and whether employees have the ability to seek relief from those mandates. Here are a few of the big questions and answers – which vaccine mandates are still in effect, who is covered by the vaccine mandate, and are there any ways to get around it?

What was the Supreme Court’s decision on each federal vaccine mandate?

OSHA’s Vaccine Mandate

The Supreme Court decided to reinstate a Stay of OSHA’s 100+ employee vaccine mandate, effectively pausing the mandate from effect, pending a decision on its validity by the 6th Circuit Court of Appeals. The Supreme Court did not technically issue a decision on whether OSHA has the authority to create regulations requiring all employers with at least 100 employees to either have their employee’s vaccinated or regularly tested. However, the Supreme Court did heavily indicate that the Supreme Court would explicitly overturn any ruling in favor of OSHA’s regulations, as the Supreme Court indicated that it is Congress, not an administrative body such as OSHA, that would need to create such regulations effecting private citizens in this way.

CMS’ Vaccine Mandate

Contrary to its decision on the OSHA regulations, the Supreme Court removed the Stay placed on CMS’ vaccination mandate for employees that work for employers receiving Medicare or Medicaid funding, allowing these regulations to be in effect as the lower Courts decide the validity of this mandate. This decision on the CMS vaccination mandate by the Supreme Court indicated heavily that the Supreme Court believed that the CMS vaccination mandate was a valid use of CMS’ authority. Thus, even if any lower Court overturns this vaccine mandate as an overreach of CMS’ authority, the Supreme Court will likely reinstate the mandate on appeal.

Can my employer still require me to be vaccinated for COVID-19?

Yes, as outlined below:

• If you work for the federal government or a federal government contractor, you already must have been fully vaccinated by November 22, 2021 to continue employment or will need to be vaccinated as you start a new position for the federal government or federal government contractor.
• If you work for a health care organization that receives Medicare or Medicaid funding, the CMS has created a rule that will require your employer to mandate vaccines for each and every one of its employees.
• Despite the Supreme Court’s decision regarding OSHA’s vaccine mandate, if you work for a private employer, your employer can still mandate the vaccine if they so choose, and you can be subject to discipline, including termination, for failure to comply. They may also put in place a combination of vaccine and testing protocols.

When do the mandates go in to effect?

It depends on your employer:

• Federal government employees and contractors must all be vaccinated as of November 22, 2021.
• The CMS has rolled out the rule that applies to health care workers who work in Medicare or Medicaid facilities. Now that the Supreme Court reinstated the timeline issued by the CMS, in accordance with these regulations, organizations that do not have at least an 80% vaccination rate along with a plan to reach 100% vaccination rate by January 27, 2022 will be out of compliance with the regulations. As such, these organizations may (and in most cases, must) require their employees to become vaccinated within the coming months.
• Private employers are free to issue their own vaccine or testing mandates and set their own timelines for those protocols.

Are there any exceptions for these vaccine mandates?

Yes, employees may submit accommodation requests for employers to evaluate and either grant or deny.

Disability Vaccination Exceptions

If you have a disability, as defined by law, that requires a reasonable accommodation, and not receiving the vaccine is related to your disability, you may request as an accommodation to be exempted from the vaccine mandate. This can be requested by employees of government and private employers.

Once you make the request, your employer must engage in the interactive process with you but keep in mind, your employer may deny your requested accommodation if they believe it will impose an undue hardship on their business or operations.

Relgious Vaccination Exceptions

In limited circumstances, an employee may seek and obtain a religious accommodation to a vaccine mandate. This can be requested by employees of government and private employers.

The burden imposed to receive a religious exemption is relatively high and is based on several factors, which allow an employer to evaluate, objectively, whether the religious belief is or is not sincerely held. Employers are also entitled to deny a religious accommodation request if granting it would impose a substantial hardship, either legal or financial.

How do I request a reasonable accommodation for my disability?

Most employers have processes in place for employees to request an accommodation. In general, it is sufficient for an employee to advise the employer that they have a disability that requires an accommodation, and identify the requested accommodation. That triggers the legal requirement for the employer to engage in an interactive discussion with the employee about the requested accommodation, which may include requesting additional information from the employee about the employee’s ability to perform essential job functions.

An employer does not have to grant the exact accommodation that has been requested. For example, an employer is entitled to propose alternative solutions that the employee must consider, with his or her health care providers, if the employee’s proposed accommodation will cause an undue hardship for an employer.

How do I request a religious accommodation?

You should contact your employer to determine if they have a process in place for requesting a religious accommodation. Many employers may be in the process of putting something in place, as the landscape for these mandates continues to change.

Your request will be evaluated for sincerity of the belief, whether you have behaved in a manner that is consistent with those beliefs, whether the timing of your request renders it suspect and whether there may be secular reasons or evidence to suggest that the accommodation is being sought for non-religious reasons.

An employer is legally entitled to seek additional supporting information regarding the sincerity of the employee’s religious beliefs. If the request would cause an undue hardship, the employer may deny it.

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*This post has been updated to reflect the recent Supreme Court rulings regarding the OSHA Vaccine mandate and Health and Human Services Center of Medicare and Medicaid Services’ vaccine mandate.