Members Alan G. Brackett and Daniel P. Sullivan are now co-writing an “Attorney Analysis” column for Reuters Legal News. Their article, “Employer Obligations in Administering COVID-19 Vaccine Mandate,” was published on January 18, 2022. Following is an excerpt from the article, which you can continue reading on Reuters Legal News. You can also download a PDF of the entire article at the link below.
Employer obligations in administering COVID-19 vaccine mandates when facing religious exemption requests
As American workplaces continue to re-open, employers are precariously balancing optimally operating their businesses with keeping their employees, clients and customers safe. To accomplish this, both private and public employers have begun requiring their employees to become vaccinated against COVID-19 in an effort to stop the spread of the pandemic and prevent further business interruption.
This article explores employer and employee obligations for those businesses that have implemented vaccine mandates and resulting litigation, particularly in the public sector.
Private employers’ ‘at-will’ employment relationships
The United States is unique from other developed countries in that employment in most states is presumed to be “at-will” absent any written agreement to the contrary. This means that employment relationships may be terminated by the employer with no notice and for any legal reason.
At-will employment also allows the employer to unilaterally modify the terms and conditions of an employee’s employment with no notice and for any legal reason. Thus, employers have broad discretion in an at-will environment to establish and enforce vaccine mandates, i.e., make an employee’s employment contingent upon becoming fully vaccinated against COVID-19.
Those who are anti-vaccine have pushed back against at-will employers to unilaterally require vaccination of its employees. Specifically, the use of religious exemptions and religious accommodations have been invoked to sidestep vaccine mandates in the workplace.
Traditionally, religious exemptions extend to a person whose sincerely held religious belief may conflict with an employer’s otherwise-neutral policy. For example, a Muslim individual who seeks to wear a hijab or a Hindu employee who seeks to wear a bindi may be exempted from an employer’s dress code policy. The key element with these exceptions is that the religious belief is “sincerely held.”
Religious exemptions specifically related to COVID-19 vaccine mandates, however, have been emerging since employers have begun implementing these mandates. Such claimed exemptions have become so prolific that the Equal Employment Opportunity Commission (”EEOC”) has commented and provided guidelines to private employers that are faced with a claimed religious exemption.
Broadly speaking, the EEOC has advised…