B. Aidan Flanagan, Alan D. Rose, and Meredith Wilson Doty, featured an opinion piece in Massachusetts Lawyers Weekly, “New COVID Vaccination Requirements for Employers."
On September 9, 2021, President Biden announced a federal vaccine mandate that will affect approximately 80 million employees when OSHA rules go into place. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is currently working on an Emergency Temporary Standard (ETS) that will require all private employers with more than 100 employees to provide proof of vaccination or negative COVID-19 test results before entering the workplace.
Although employers will not know the details of the ETS until it is announced, they can still begin planning to administer the COVID-19 vaccination requirement in a non-discriminatory way under Title VII of the Civil Rights Act of 1964. Title VII may apply if employees are unable to get the vaccine due to a disability, or if their sincerely held religious belief, practice, or observance prevents them from getting the vaccine.
Evaluating Title VII Claims
Employers can question the sincerity of an employee’s religious beliefs or determine that granting any accommodation to its COVID-19 requirement will impose an “undue burden.” In all decisions, however, employers must be consistent and anticipate legal challenges to any termination or suspension of employment during this turbulent time.
Employees carry the burden of proof in religious discrimination claims, but each review of an individual accommodation request puts employers at risk, especially if employers do not have a plan for approving or denying such requests. Employers should be uniform in what evidence they request from employees and how they make decisions regarding accommodation. They should also keep an eye out for common defenses. For example, if an employee pays a pastor to attest to their religious beliefs, their participation in this emerging cottage industry may bring the sincerity of their religious beliefs into question.
Rose Law Partners encourages employers to prepare for OSHA’s ETS even though the details have not yet been announced and the law may face legal challenges.