IMPORTANT: COVID-19 Vaccine Mandate FAQs

FREQUENTLY ASKED QUESTIONS

Question: What will President Biden’s COVID-19 vaccine mandate entail?

A:        Pursuant to President Biden’s COVID-19 Action Plan issued in September, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is currently developing a rule that would require all employers with 100 or more employees to ensure that their respective workforces are fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  The OSHA rule has not yet been promulgated, so the parameters and standards of the vaccine mandate is not yet known.

The recent federal COVID-19 vaccine mandate may be a preview of the upcoming OSHA rule.  Federal employees must be fully vaccinated by November 22nd.  In the meantime, those who are not fully vaccinated as of now must properly wear masks, maintain a distance of at least six feet, and comply with a weekly or twice-weekly screening testing requirement.

Furthermore, federal contractors have until December 8th to be vaccinated.  Similarly, those that are not currently fully vaccinated must wear a must and should maintain a distance of six feet.

Question: If my employer institutes a vaccine mandate, must I get the vaccine?

A:        Not necessarily.  Generally, you would have to get the vaccine.  However, you may be entitled to a limited exception from the vaccine mandate because of a disability or because of a sincerely held religious belief, practice, or observance.  The ways to establish the requiring such religious and disability accommodations are discussed below.

Furthermore, if your employer’s vaccine mandate follows the mandate for federal employees, in some limited circumstances an agency may grant an extension to a vaccination deadline based upon other disability considerations.  For example, the CDC recommends that one should delay receiving the COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment.

Question: How can I be entitled to a religious accommodation?

A;        Title VII of the Civil Rights Act protects workers from employment discrimination based on their religion.  Under Title VII, an employer is prohibited from discriminating against an employee because of religion in hiring, promotion, discharge, compensation, or other “terms, conditions or privileges” of employment, and also may not “limit, segregate, or classify” applicants or employees based on religion “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”

“Religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.”  It should be noted that Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.”  Furthermore, your employer must have been informed of this belief.

As mentioned above, all accommodations must be reasonable.  The reasonableness of such accommodations is fact-specific and is determined on a case-by-case basis.  Examples of what may constitute appropriate accommodations are discussed below.

Question: How can I be entitled to a disability accommodation?

A:        The Americans with Disabilities Act, or ADA, broadly prohibits discrimination against a qualified individual on the basis of disability as it applies to aspects of employment, including hiring, advancement, and firing.  In other words, the ADA requires employers to provide disabled employees with “reasonable accommodations” to avoid discrimination.  The ADA defines a “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment.”

Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity.  If the particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.

A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

If it is determined that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.   Examples of what may constitute appropriate accommodations are discussed below.

Question: What are some typical examples of appropriate accommodations?

A;        Any reasonable accommodations may depend on the employee’s job duties and the design of the workspace.  The EEOC has listen numerous potential accommodations that may be appropriate in the event of a religious or disability accommodation under Title VII or the ADA, including:

• Requiring the employee to wear a mask
• Working staggered shifts
• Making changes in the work environment, such as as improving ventilation systems or limiting contact with other employees and non-employees
• Permitting telework if feasible
• Reassigning the employee to a vacant position in a different workspace

Furthermore, the CDC has CDC maintains the following recommendations for prevention of COVID-19: mask wearing, staying six feet away from others, avoiding crowds and poorly ventilated spaces, regular hand washing, covering coughs and sneezes, cleaning and disinfecting surfaces, and daily health monitoring.

Question: How can I enforce my rights under Title VII and the ADA?

A:        In order to enforce your rights under Title VII and the ADA, you generally must exhaust all administrative remedies through the EEOC first.  In other words, if you plan to file a lawsuit under federal law alleging discrimination on the basis of religion or disability, you first have to file a complaint with the EEOC.

A very important thing to remember when filing a complaint with the EEOC is that there are strict time limits for when you can file the complaint, and they vary by state.  In Tennessee, you must file with the EEOC within 300 days of the alleged date of workplace discrimination.  In Arkansas, however, a claim through the EEOC is limited to 180 days from the date the workplace discrimination took place.  We recommend that you act immediately when you feel that your employer has discriminated against you.

Question: What happens after I file my complaint with the EEOC?

A:        After you file your complaint, the EEOC may first attempt to have a mediation between you and your employer.  If the charge is not sent to mediation, then the EEOC will enter into an investigation of the charge.

The average EEOC investigation takes approximately 10 months, but it should be noted that how long the investigation takes depends on many factors, including the amount of information that needs to be gathered and analyzed.

​​Under Title VII and the ADA, you must be given a Notice of Right to Sue from the EEOC before you are able to file a lawsuit in federal court against your employer.  You can request and obtain a Notice of Right to Sue in the following situations:

• If more than 180 days have passed from the day you filed your charge with the EEOC, the EEOC must, by law, give you the notice upon request.
• If fewer than 180 days have passed from the day you filed your charge with the EEOC, we will only give you the notice if we will be unable to finish our investigation within 180 days.

Once you have obtained a Notice of Right to Sue, you may file a lawsuit against your employer in federal court under Title VII and ADA discrimination theories.

Question: Will the EEOC sue on my behalf?

A:        Possibly, but don’t necessarily count on it. The EEOC ultimately litigates a small percentage of all charges filed as they have limited resources.  For example, in FY 2020, the EEOC filed only 93 discrimination lawsuits while receiving 67,448 charges of workplace discrimination.

In most cases, the EEOC can file a lawsuit to enforce the law only after it investigates and makes a finding that there is reasonable cause to believe that discrimination has occurred, and is unable to resolve the matter through a process called “conciliation.”. When deciding whether to file a lawsuit, the EEOC takes into account numerous factors, including the following:

• Strength of the evidence
• The issues in the case, and
• Wider impact the lawsuit could have on the EEOC’s efforts to combat workplace discrimination.

Note that if the EEOC elects not to file a lawsuit on your behalf, you have the individual right to file a lawsuit in court.

Question: Can I prevent my employer from enforcing a vaccine mandate against me through a temporary injunction?

A:        It is possible, but will be difficult.  You may pursue a temporary restraining order as a form of preliminary relief under both Title VII and the ADA.  Generally, courts consider the following basic factors in deciding whether preliminary relief is appropriate:

• (1) whether the moving party demonstrates a strong likelihood of success on the merits;
• (2) whether the moving party would suffer irreparable harm without the order;
• (3) whether the order would cause substantial harm to others; and
• (4) whether the public interest would be served by the order

The first factor is often determinative.  In the Sixth Circuit, which includes Tennessee, a showing of irreparable injury is required for the issuance of a temporary injunction under Title VII and the ADA when the EEOC is bringing the suit on your behalf.

It is no guarantee that you will receive preliminary relief when you request it from the court.  The Supreme Court has held that temporary restraining orders and preliminary injunctions are “extraordinary and drastic remed[ies], . . . never awarded as of right.”  Furthermore, the Sixth Circuit recently denied preliminary relief to group of healthcare workers who sought to prohibit a private hospital from enforcing a COVID-19 vaccine mandate

(Note: the policy in this case stated that employees were required to either receive a COVID-19 vaccine or submit a request for a medical or religious exemption.  The hospital had the authority to terminate employees who failed to comply without an exemption).  This is a still-developing issue of law, and what future courts may hold on these vaccine mandates or any single vaccine mandate is still unknown.