What laws exist to protect employees from vaccine mandates?
Under federal recommendations by the National Vaccine Program Office in the National Adult Immunization Plan (NAIP), National Healthy People goals are used to guide adult vaccination goals.
While the NAIP fails to incorporate informed consent and privacy protections and Healthy People goals are aspirational and carry no statutory impact, the NAIP is used by states for guidance in implementing adult vaccine mandates.
Currently, most adult mandates are in the health care setting and impact health care workers and some contractors and are most often for Hepatitis B and Influenza vaccine. These mandates and any exemptions offered vary from state to state and NVIC links to this information on our state pages.
At a state level, rules and policies mandating vaccines in the workplace have been successfully challenged by the federal Equal Employment Opportunity Commission1 and health care workers who have been denied religious exemptions have received punative damages and back wages.2 3
The basis for these challenges is under Title VII of the Civil Rights Act of 1964. Under the Act employers are prohibited from discriminating against employees on the basis of race, color, religion, sex and national origin and provides for compensation and punitive damages when discrimination in the workplace occurs. Guidance from the U.S. Equal Employment Opportunity Commission (EEOC) in this regard states the following:
“Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.
Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.”4
To be eligible for compensation and damages under a Title VII action a charge must be filed within 180 calendar days from the day the discrimination took place. To learn more about filing a charge, visit the EEOC’s website.
COVID NOTE: According to EEOC guidance dated September 8, 2020 the EEOC has stated the following generally:
- Employers may ask employees if they are experiencing COVID symptoms, as identified by public health authorities and may take your temperature and log that information. Refusal in the physical workplace to answer these questions or consent to a test may result in being barred from the physical workplace;
- If you have symptoms, your employer can require that you leave the physical workplace;
- Employers may ask if you have been tested for COVID-19, may test you for current COVID-19 infection, but may not test you for immunity to COVID-19 (past infection);
- Employers are required to keep medical information confidential and seperate from the employee file to limit access to this sensitive information;
- Employers may screen job applicants for COVID-19 after making a conditional job offer, if they are screening for all applicants;
- Employers may offer accomodations to employees at higher risk or those with pre-existing mental health conditions, upon request, to limit exposure;
- Employers must continue to provide reasonable accomodations required by the Americans with Disabilities Act (ADA), the Rehabilitation Act; and Civil Rights. This includes accomodation for religion as defined in Title VII of the Civil Rights Act;
- Employers are prohibited from excluding employees from the workplace based on age, disability, pregnancy, race and religion.
NVIC advises that EEOC guidance
be read to fully understand the details of how COVID-19 may impact employee and employer rights in the workplace. This guidance is likely to change as COVID-19 continues to circulate in the U.S. population and as vaccine policy and law is developed and implemented when a vaccine becomes available. COVID-19 has been assessed by the EEOC as meeting the ADA's "direct threat" criteria and this status allows for more medical inquiries and controls to be put into place in the work environment and may impact how "undue hardship" in Title VII is interpreted in relation to religious exemption when a COVID-19 vaccine becomes available.5
As of the most current guidance provided by the EEOC, it does not appear COVID-19 will change how the application of "undue hardship" used in previously successful challenges to employer influenza vaccine mandates to obtain a religious exemption will differ in future EEOC challenges brought against employer influenza vaccine mandate policies.6
As always, NVIC encourages the public to obtain legal advice to further understand these rights and in determining if your rights have been violated and what course of action is available to you to preserve your rights and/or remedy any violation of them.
1 Opel, D. Sonne, J. Mello, M. Vaccination without Litigation – addressing Religious Objections to Hospital Influenza-Vaccination Mandates. N Engl J Med 2018; 278:785-788. Mar. 1, 2018
2 Thompson, C. Memorial Healthcare in Owosso settles religious discrimination suit for $75,000. Lansing State Journal, Jun. 28, 2019.
3 U.S. Equal Employment Opportunity Commission. Press Releases – Saint Vincent Health Center to Pay $300,000 to Settle EEOC Religious Accommodation Lawsuit. Dec. 23, 2016.
4 U.S. EEOC. Questions and Answers: Religious Discrimination in the Workplace. Jan. 31, 2011.
5 U.S. EEOC. Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Mar. 21, 2020.
6 U.S. EEOC. Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Mar. 21, 2020.