As COVID vaccination rates increase, some businesses look to legislation mandating guidelines. Some businesses plan to transition from remote work settings in light of current vaccination statistics. With 47.3 percent of US residents and 45.2 percent of Canadians have received their first vaccine dose, businesses aspire to open their doors again. However, how viable are company vaccine mandates? Can employers enforce vaccine mandates? There certain legal and ethical considerations that come into play.
Who is Exempt?
Some individuals cannot receive the vaccine due to various reasons, including religious beliefs or underlying conditions. These medical and religious exemptions are protected under both U.S. and Canadian law. For the U.S., potential COVID vaccine mandates must comply with the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964 (Title VII), and other workplace laws. Canada must comply with Canada's Charter of Rights and Freedoms and any Canadian labor laws.
Entities must also consider state, provincial, and national legal precedents set by influenza vaccine mandates. According to Canadian law regarding the vaccination of children in public schools, parents are permitted to request their child’s exemption from vaccination requirements on the grounds of religious beliefs, medical conditions, and other factors. Existing vaccination policies in some provinces would allow for the exclusion of unvaccinated children from schools. While this statement only applies to children in public schools, it could potentially apply to workplaces amidst post-pandemic recovery.
In the U.S., individuals with underlying conditions will be exempt from potential vaccine mandates, as protected by the Americans with Disabilities Act (ADA). While employers may implement policies that prevent individuals with disabilities from posing a “direct threat to the health or safety of individuals in the workplace”, they may be entitled to a COVID-19 vaccination exemption based on previous legislation regarding the influenza vaccine. Under ADA, exemptions have previously been given to those whose disability prevented them from receiving an influenza vaccine.
Those whose religious beliefs contradict the acceptance of the vaccine are also protected under Title VII of the Civil Rights Act of 1964. According to the U.S. Equal Employment Opportunity Commission, these individuals will not be subject to the mandate as it is unlawful to “limit, segregate, or classify its membership or [...] deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee [...] because of such individual's race, color, religion, sex, or national origin”. In other words, employers cannot exclude employees from work based on their decision to not receive a vaccine allegedly justified by their religious beliefs. To do so would essentially be a restriction on employment based on religion.
This is exemplified in the case of the influenza vaccine, which set the precedent that once an employer is aware of the justified vaccination exemption they must provide “reasonable accommodation” without imposing “undue hardship”. Reasonable accommodation regarding the COVID-19 outbreak can include providing materials for remote work, maintaining some mandatory mask-wearing, transfers to positions that involve less contact with others, etc. Employers may need to negotiate with a worker’s union should the employee in question be a member.
COVID-19 Mandates in Office Settings
If employees can provide evidence that unvaccinated employees would pose a “direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others”, and that the threat cannot be mitigated or reduced via reasonable accommodations, then the employer may have grounds to not admit the employee into the office. This risk can be evaluated in a number of ways, such as by assessing risk, susceptibility, and rate of transmission. Though the employee cannot be terminated due to their inability or refusal to vaccinate, they may be prevented from physically entering the building due to the potential endangerment of colleagues.
Working with a Third Party
Hiring a third-party workforce management solution that handles the legality and compliance of workers can ease the navigation of post-pandemic work. HCMWorks offers managed service provider (MSP) programs, contingent workforce advisory, and compliance assistance to manage and mitigate legal risk. To learn more, contact our team of experts.