The hospital at issue in Fallon mandated the influenza vaccination absent an exemption due to religion or disability.Īs part of the exemption process, Fallon was asked to explain his views so that the hospital could assess whether his refusal to receive the influenza vaccination was "because of. Mercy Catholic Medical Center provides employers with a road map to implement a COVID-19 vaccination program. Court of Appeals for the Third Circuit's seminal 2017 decision in Fallon v. Supreme Court precedent, employers can establish undue hardship under Title VII if they can demonstrate that the accommodation would require "more than a de minimis cost." Title VII of the Civil Rights Act prohibits discrimination because of religion, among other protected categories, and requires employers to reasonably accommodate religious observance and practice, absent undue hardship.
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That way, when the vaccine becomes available, employers will be poised to immunize their workforce - following the disability exemption process.Įmployers looking to put in place a COVID-19 vaccine program need look no further than to the case law and guidance developed in the influenza vaccination context to guide their path. Since at this point we do not know the components of the future vaccine or the medical contraindications, the disability exemption protocol will need to take place after FDA approval.Įmployers can, however, develop their religious exemption process now and evaluate all requests in advance of FDA approval. If employers mandate the vaccine for any category of employee, they need to create an exemption process for religion and disability. The third option would be to mandate the vaccine for all employees who do not qualify for an exemption due to religion or disability.Īssuming that a safe and effective vaccine will, hopefully, be available in the next few months, now is the time for employers to weigh the various options and make decisions as to which approach they would follow.Ĭreating the Building Blocks of a Program That is, mandate the vaccine for certain employees - for example, those who cannot work remotely or cannot fully socially distance in the workplace. The second option would be to create a hybrid approach. Equal Employment Opportunity Commission in 2009 during the H1N1 virus outbreak - and updated in response to the COVID-19 pandemic in March of this year - this is the approach suggested by the EEOC: "Generally, -covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it." In a pandemic preparedness guidance document issued by the U.S. The first is to follow the typical influenza vaccination approach of many non-health care employers, i.e., offer the vaccine to employees free of charge on a strictly voluntary basis. Assuming that employers can get access to the vaccine, they have several options. A poll from Morning Consult conducted just two weeks earlier showed that 51% of Americans would get a COVID-19 vaccine, down from 72% of those surveyed in April.Īs we pass the six-month mark of many employees working remotely and businesses shuttered or operating at less-than-full capacity, employers should assess what approach they would take if a safe and effective vaccine is approved by the FDA. 18-21 by Axios and Ipsos SA found that 60% of those polled were not very or not at all likely to get the first wave of COVID-19 vaccines when they are made available. Yet new poll data shows that as time goes on fewer and fewer Americans report that they would receive a COVID-19 vaccine if one (or more) becomes available.Ī poll taken from Sept. While only time, and data, will tell the efficacy of any COVID-19 vaccine, it certainly makes sense for employers to consider mandating a COVID-19 vaccine - with exemptions for religion and disability - as part of a larger COVID-19 mitigation strategy.
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Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, testified before Congress last week that there should be around 700 million doses of the vaccine by April.
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More recently, it has communicated that it expects to spell out a tough new standard for an emergency authorization of a COVID-19 vaccine soon. Food and Drug Administration has said that to win regulatory approval, any COVID-19 vaccine will have to prevent disease, or decrease its severity, in at least 50% of the people who receive it.
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Presently, there are four vaccine candidates in late-phase clinical trials. As we all wait with bated breath for a COVID-19 immunization so that life can go back to some semblance of normal, many employers are considering whether and under what circumstances they should require employees to receive a COVID-19 vaccine as a condition of employment. Researchers furiously are working to bring a COVID-19 vaccination to market as quickly as possible.