Can Private Employers Mandate COVID Vaccines?

The scope of religious exemptions, based on TWA v. Hardison, may be in flux.

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The EEOC released guidance stating that private employers can generally mandate that employees get the COVID-19 vaccine. There are two likely types of exemptions. First, there may be some disability-related justifications that would exempt a person from a vaccine-mandate. Second, there may be some religious-related justifications that would exempt a person from the vaccine-mandate. EEOC offers this FAQ:

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee's sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined "undue hardship" under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Here, EEOC is relying on TWA v. Hardison (1977). Justice White's majority opinion found that religious exemptions that create "more than a de minimis cost" are an "undue hardship," and need not be granted. But this precedent may not be long for the world. In Patterson v. Walgreens, Justices Alito, Thomas, and Gorsuch signaled they wish to revisit Hardison. And I am aware of at least one petition that squarely presents this question: Dalberiste v. GLE Associates Inc. The case was initially distributed for conference on 10/9, and has been rescheduled three more times. Perhaps a Justice is preparing another dissent from denial. Or there is some chicanery behind the scenes over whether to grant this term. If Justice Barrett is willing to give a courtesy fourth, the Court could decide the issue this year.

If the Court overrules Hardison, Justice Gorsuch would vote to reverse a precedent authored by his former boss. I am not aware of a Justice who has expressly voted to nullify a precedent his former employer wrote. The closest example I can think of is Dames & Moore v. Regan, in which Justice Rehnquist watered down Justice Jackson's Youngstown framework. Perhaps Gorsuch and Kavanaugh will one day reverse a Kennedy precedent. Or ACB could overrule a Scalia precedent. I don't think there are any Goldberg or Marshall precedents on the chopping block for Breyer or Kagan.

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  1. If you cant make an employee stop wearing a hijab in a california clothing wear store I don’t see how you can force a vaccine on them if practically everyone else who needs it can already get it.

    1. Amos, what if you have another employee who cannot be vaccinated for medical reasons, and the two must associate? Can one employee’s religious objection force another who would be at high risk of death to quit his job? What if the religious employee is a person with easy-to-replace skills, and the vulnerable employee is one the employer regards as irreplaceable?

      1. Well then they can work something out. No need for blanket mandates since we supposedly believe so strongly in bodily autonomy. Especially when its for whatever libs want.

        1. Amos, how do they work it out?

          1. They don’t get COVID due to herd immunity. Seriously. This isn’t some magical disease that can appear spontaneously if two people are in close proximity.

            1. Speaking of conjuring magic… “herd immunity” is not a magical barrier for viruses. Current estimates say about 85% of Americans would need to be vaccinated before we could even reach any kind of useful herd immunity. Fauci estimates that we won’t reach 85% vaccination rate until late 2021. If conservative populists continue to spread misinformation about the virus, we may not even reach a reasonable vaccination level at all next year. And that doesn’t even include black Americans that have a history of (rationally) refusing vaccines along with people who don’t bother getting the required booster.

              So no, “herd immunity” is not some talisman that is going to magically protect people in the workplace for quite some time. We’ll be living with this virus through all of next year in one form or another.

              1. I don’t think we’ll reach herd immunity until a vaccine is available for children. They are 22.6% of the population. Add that to the 5% (100-95%) who aren’t immune with the vaccine and a modest number who refuse and it’s just not going to happen until kids are vaccinated.

      2. There is no clear evidence yet that the vaccine provides sterilizing immunity, so a more vulnerable employee is still going to be at higher risk regardless of whether the other employees are vaccinated.

        1. Anon7, you are proposing that vaccinated people will become Covid-19 carriers, albeit immune from the effects of the disease? If so, why would health authorities authorize the vaccine as safe and effective? That sounds like it would make the pandemic notably more dangerous, at least for a vulnerable subset of the population. If there were even a hint of that in the testing results, why hasn’t it been widely discussed?

          By the way, is that even a thing? Are there proven instances where vaccines have turned recipients into immune-but-contagious Typhoid Marys? Or is this just more, “People are saying?”

          1. The primary purpose of a vaccine is to prevent people from getting extremely sick. Sterilizing immunity is a nice bonus but that is not necessary for a vaccine to be safe and effective for the person receiving the vaccine. So you could still get asymptomatic spread (which occurs already) even with a vaccine, though it may reduce the amount of spread since a vaccinated person’s immune system will react more effectively.

            1. Anon7, you do not seem to be trying to answer my questions. Just more generalizations, offered without any foundation in sight.

              1. The vaccines approved so far have not been studied to measure whether they reduce spread of Covid. They have only been studied to reduce the number and severity of positive cases among people who have been vaccinated. You need almost complete contact tracing to “prove” how being vaccinated affects passing along the disease.

                The reason they have been approved as safe and effective is because they have few major adverse effects, and because they do greatly reduce the number of people who test positive for Covid and get bad cases. The latter makes it likely that they pass on the disease much less, but that is not yet demonstrated, much less quantified.

              2. Even the popular press has had stories (my links were blocked for some reason) that have addressed the issue of whether the Covid vaccines are likely to provide sterilizing immunity. There is not enough data yet in humans but “Challenge studies in vaccinated primates showed reductions in pathology, symptoms, and viral load in the lower respiratory tract, but failed to elicit sterilising immunity in the upper airways.” (Comment thelancet.com Vol 396 November 7, 2020). Polio and flu vaccines are of examples of vaccines that do not provide sterilizing immunity. I would suggest that you do some basic research.

                1. Anon7, thank you for that foundational information in support of your conjecture. It was helpful to me. Are you looking forward to masks becoming a permanent feature of the social landscape?

                  1. Fauci has said recently that when we reach about 85% vaccination rate, that herd immunity would provide a great deal of protection.

                    Here is a CDC source for influenza deaths per year.

                    I don’t think it is unreasonable to assume we’ll have a similar pattern as the flu where we do lose a few thousand every year from the disease but otherwise take no other precautions. Masks are likely going to be a common feature in 2021 but hopefully for not much longer than that. In the mean time, science will advance our understanding of COVID-19 and treatments will improve.

                    1. Fauci saying he thinks by late Spring we’ll get at least 50% vaccinated:

                      Fauci’s comments on herd immunity

                    2. And here’s Pew Research that has breakdowns by age, race, political party, etc

                      Pew Research

                2. Anon, if you try to put more than two links in any one comment, it will be flagged as “in moderation” but it is really blocked. Try putting just one link per comment.

                  Also, reason’s html filter is really strict for links. They have to be formatted exactly right to get through.

                  1. Thanks for the tips. I figured it was something like that.

            2. In any case asymptomatic spread is lower than symptomatic. You shed less virus breathing normally than you do coughing and sneezing and wiping your runny nose on everything. This is an established fact with all respiratory illness

      3. Stephen, even if Hardison is reversed, your hypothetical would certainly be considered a genuine “undue hardship”, and therefore the employer would be entitled to demand that that specific employee to be vaccinated or find another job.

        But it could not make the same demand of another employee who didn’t have to work with the vulnerable one. Nor could it make this demand if it was reasonably feasible to reassign one of the two employees with conflicting needs so that they were no longer working with each other.

  2. If you read carefully, you will notice that the EEOC does not actually say that mandated vaccinations by employers are lawful. It only says that if mandatory vaccinations exist, exceptions must be made for religious and medical reasons. Whether an employer may lawfully mandate vaccinations depends upon an interplay of various state and federal laws.

    There is a New Jersey decision that holds that an employer who grants an exemption from vaccination for religious objections but not secular objections is violating the secular objectors’ “freedom of expression.” The National Labor Relations Board has held that a unionized employer must bargain with that union before implementing a mask mandate at work, which, by extension, will also apply to mandatory vaccination. And there is currently some discussion whether an employer that reimburses employees for the cost of mandatory vaccination is creating a “group health plan“ under ERISA.

    All of this case law predates Covid. But the question of employers mandating vaccinations is not straightforward by any means.

  3. If an employer mandates a vaccine which has side effects, wouldn’t the employer then become liable for the side effects under Worker’s Comp laws?

    1. Not unless the employer is administering the vaccine.

      1. And also, I am not an expert on this but there are laws regarding compensation for vaccine-related torts. I suspect that such claims would be diverted into the compensation fund.

        1. I was thinking of the malingerer claiming to be “sick” because of it.

  4. Religious issues aside, employer vaccine mandates should make one very uncomfortable. They do me.

    1. Meanwhile, they make the workers who don’t want to work with a potential typhoid Mary or a sociopath who would rather fellow citizens die than have a needle stuck in his arm, much more comfortable.

      1. I get that. I am talking specifically about the COVID vaccination. While everyone has high hopes for it, it is still new and largely untested. And it has been rushed for approval. For understandable reasons, but still, there is significant uncertainty and risk in taking it that more established vaccines do not have.

        I was speaking last week to a doctor I know. He had COVID early on and still feels the effects of it. He told me his medial practice has a total of 50 people (including doctors, nurses, technicians, receptionists), and EVERY ONE got COVID.

        When I asked him if he plans to take the vaccine (which as a medical worker he would have priority for), he said no, he wants to see how it goes for several months, and then will re-evaluate.

        So, yes, forcing someone to choose between his/her livelihood and taking a risky vaccination makes me uncomfortable.

        1. I hope selfish, anti-social cowards do not establish the relevant policies.

    2. I wouldn’t be uncomfortable if a meat packing plant required workers to be vaccinated. It’s hard to protect workers with barrier, masks and so on and operate the meat packing plant.

      I also wouldn’t be uncomfortable if school teachers had to be vaccinated especially since school children can’t be vaccinated currently.

      I definitely would not be uncomfortable with a dentists office requiring all dentists and dental technicians to be vaccinated.

      It’s not trivial to find another job, but it can be done.

  5. If you’re in an at will state, can’t they just fire anyone that refuses? No mandate, just a condition of employment.

    1. You can’t fire people in violation of federal discrimination laws, which trump state at-will firing laws just as they trump state at-will hiting laws.

      So if federal discrimination law covers the issue, you indeed can’t do it.

  6. It seems a big stretch to go, in a single case, from saying that more than a de minimis cost is an undue hardship to saying that private employers have to put up with costs that government doesn’t under constitutional strict scrutiny.

    I tend to favor broad interpretations of accommodation laws. But I think the Court has to also be concerned about the stability of the law and avoiding the perception that the party appointing the justices can get whatever result it wants willy-nilly.

    As long as Jacobson v. Massachusetts is the law of the land, I would not advise moving in one step from imposing almost nothing on employers to imposing a higher standard than imposed on the government pre-Smith.

    I would propose small incremental burdens on employers in a series of cases extending over years, also giving Congress time to step in and clarify the standard.

    I wasn’t a fan of Bostock either. I would frankly see this as similar. This reeks too much of courts using the law to impose what they personally want rather than try to understand what Congress wanted. And as with Bostock, the situation, here the text, is rarely as clear as the zealous advocate sees things.

    I would show some humility here and not go in immediately for the kill.

    After all, the current 6-3 (or 5-4 on some issues) majority won’t last forever. One conservative justice retires or dies during the Biden administration, and the situation could change abruptly yet again. All this constant abrupt change is not good for the standing of the judiciary, or respect for the rule of law.

    1. As long as Jacobson v. Massachusetts is the law of the land

      That’s Blackman bait!

    2. I don’t understand your point. There is no prospect of that happening, because “undue hardship” is in the statute. There is no dispute that employers are entitled to exemptions in cases of undue hardship, the only question is what that means. The current doctrine is that any hardship beyond de minimis is “undue”; the suggestion here is that this may be reversed. But even if it is reversed, that will only move the line, not abolish it. Employers will still be able to argue that this burden really is undue.

      1. It seems to me that a hardship that the Constitution doesn’t require the government to undergo under strict scrutiny – that is, a hardship which is constitutionally undue for government — must necessarily also be statutorily undue for a private employer.

        If government has a compelling interest in vaccinating religious objectors in the middle of a pandemic, as Jacobson held, then it follows that a private employer also gets to have a vaccination policy overriding religious objections as the risk of mass infection creates exactly the undue hardship to a business that the statute describes.

        1. Jacobson predates the concept of “strict scrutiny”, and also concerned the state police power. But sure, if a need is so compelling that it would survive strict scrutiny then it stands to reason that it would also meet any conceivable standard of “undue burden”. In fact it’s likely that even if Hardison is overturned the new line wouldn’t be as strict as that. You’d need more than de minimis, but you probably wouldn’t need something strong enough to survive strict scrutiny.

  7. The guidance is a long-winded way of saying “you’re on your own.” I guess it has to be; an interpretation of the law like “yes, for employees with more than 13.5 age-weighted close contact per day” needs to go through rulemaking.

  8. Seems like reasonable advice from the EEOC.

    That said, “reasonable accommodations” are, perversely, going to be much easier for industries least likely to mandate employees get vaccinated. After all, if your work smoothly shifted to telework last March and can continue that way indefinitely, the employer has little need to make sure their workforce is vaccinated, even if they can easily accomodate exceptions.

    On the flip-side, any job that can be described as “front-line” (whether they’re hospital employees, retail employees, etc.) is much more likely to go with a mandate, and much less able to accommodate refusers.

    I feel that the SCOTUS should fall on the side of employers on this one though. Religious exceptions that only impact the person seeking the exception (religious wear, beard length, structuring breaks/time off around observances) are easy to accept. The whole “if it neither breaks my leg nor picks my pocket” principle. But refusing vaccination for non-medical reasons, when we know the harms that can follow such choices (remember when we were talking about Measles outbreaks last year?), is quite unlike such personal issues in that one person’s “choice” can harm and impact others.

  9. Given that current FDA approval is provisional, one would be hard pressed to mandate anything of people.
    Once all of the usual FDA studies are complete, analyzed, and published, then maybe.
    But one cannot have long term safety data without employing long term assessment.

  10. I’m sorry, but this is just crazy = employers even able to require mandatory vaccination….for a viral disease with an overall mortality of less than 1%.

    Objectively speaking, didn’t Jacobsen have to address smallpox, which is more contagious, more fatal, and more deleterious long term effects than the Wuhan coronavirus? Because the facts are different here, I don’t think you can really apply Jacobsen in this instance, can you?

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