Q: Can ministries require the COVID-19 vaccine for their employees?

A: Yes, employers generally can mandate that employees receive a vaccine, with some exemptions.

Employers have a duty to provide a safe and healthy workplace and can generally mandate that employees receive a vaccine. The Americans with Disabilities Act (“ADA”) typically allows employers to have a “qualification standard”, such as a vaccination requirement. The Equal Employment Opportunity Commission (“EEOC”), which enforces federal laws against job discrimination, has said that employers can require COVID-19 vaccines, subject to several exemptions, some of which are discussed below.

If your ministry decides to mandate COVID-19 vaccines for employees, it likely would be beneficial to consider creating a vaccine policy. Policies can be helpful in conveying ministry expectations to employees.

Exemption - Disability Accommodation

The EEOC’s recent guidance suggests that ADA protections apply to COVID-19 vaccines. The ADA is federal law that prohibits an employer subject to the ADA from discriminating against qualified applicants and employees with a disability. Employers may be subject to the ADA if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 

It is important to note that most states also have their own laws that prohibit employment discrimination based on a disability. Often, states’ discrimination laws are more restrictive than federal discrimination laws. For example, many states’ discrimination laws apply to employers with fewer than 15 employees. A local attorney will be able to advise your ministry regarding local laws. 

Because ADA protections may apply to COVID-19 vaccines, if an employee has an ADA covered disability (e.g., allergy, compromised immune system, etc.) that prevents the employee from being vaccinated, the employee may need to be provided with a reasonable accommodation. Even though employers need to make "reasonable accommodations" under the ADA, employers are not required to provide accommodations that would cause undue hardship (the term undue hardship is narrowly interpreted).

If an employee is seeking an accommodation request from the vaccine because of a disability, ministry leaders are encouraged to communicate with the employee and determine if a reasonable accommodation can be provided (considering things such as the employee’s disability and job responsibilities) without providing an undue hardship (i.e., significant difficulty or expense) to your ministry. If a reasonable accommodation is available for the employee with the disability, then ministry leaders likely will want to make the accommodation. Examples of reasonable accommodations might include allowing the employee to work remotely or take a leave of absence. Additionally, it is unlawful to disclose that an employee is receiving an accommodation or retaliate against an employee for requesting an accommodation.

Before excluding an employee from the workplace who is unvaccinated due to a disability, typically an employer would need to establish that the unvaccinated employee poses a direct threat to others in the workplace. A direct threat is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” When determining if there is a direct threat, employers are encouraged to assess the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. 

Generally, the totality of the circumstances must be considered in concluding whether an employee is a direct threat. Further, if an employer concludes the employee is a direct threat based on the totality of the circumstances, the employer likely still needs to engage in an interactive process with the employee to determine if a reasonable accommodation is possible to alleviate the threat. It is important to note that even if a reasonable accommodation is not possible, before excluding an employee from the workplace, ministries are strongly encouraged to consult with a locally licensed attorney to ensure compliance with all applicable law as the employee may have other rights under federal, state, or local laws.

If your ministry is considering having the vaccine administered to your employees (e.g., your ministry contracts with a medical provider to administer the vaccines in the workplace), then ministry leaders will want to be aware that pre-vaccination screening questionnaires may implicate the ADA’s prohibition on disability related inquires and/or the Genetic Information Nondiscrimination Act’s prohibition on requesting genetic information. Ministry leaders are strongly encouraged to work with a locally licensed attorney to ensure pre-vaccination screening questionnaires are compliant with applicable law.

Exemption - Religious Accommodation

Similarly, an employee can request a reasonable accommodation on a religious basis. If an employee notifies their employer that their sincerely held religious belief, practice, or observance prevents them from receiving the vaccination, the employer may be required to provide a reasonable accommodation for that belief, practice, or observance under Title VII of the Civil Rights Act unless such reasonable accommodation would pose an undue hardship to the employer. Title VII of the Civil Rights Act typically only applies to employers with 15 or more employees. States generally have their own employment discrimination laws. Often, states’ laws are more restrictive than federal laws. Ministry leaders are encouraged to consult with a locally licensed attorney regarding the applicable law that may apply in this situation.   

Much like with the disability accommodation, if your ministry is confronted with an employee who requests an accommodation on a religious basis, your ministry is encouraged to evaluate whether the employee poses a direct threat to the work environment and whether a reasonable accommodation is available. If the employee poses a direct threat and a reasonable accommodation cannot be made, or there is undue hardship, ministry leaders are encouraged to consult with a locally licensed attorney for a legal opinion to determine if the employee has any other rights under federal, state, or local laws and how to proceed.

Additional Risk Management Resources

Posted January 27, 2021

Important information: Brotherhood Mutual is pleased to provide Legal Assist as a complimentary resource. The services we offer through Legal Assist are intended to provide general legal information to our current and prospective policy holders.

The information provided is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. Accordingly, no attorney/client relationship is created through this process, and no legal advice will be provided. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.

2024 Brotherhood Mutual

2024 Brotherhood Mutual