One Year Later: Have Employers Taken Stock Following Bostock?
June 18, 2021
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We are all tired of the slowly-abating but persistent pandemic. And more than ready to get back to "normal."
But employers' efforts to encourage or require employees to return to work present many challenges, such as those involving management of viruses and illnesses that employees may bring with them. Employers are understandably worried about the welfare of their workforce and those with whom they come in contact. Many employers have therefore asked whether they may require that employees subject themselves to a CDC-approved COVID-19 vaccination.
The following summarizes this complex subject under selected federal and North Carolina laws in the private workplace where there are at least 15 employees. It does not address governmental employment (which implicates Constitutional issues such as Fourteenth Amendment "liberty" and "property" interests).
"Employment at will" prevails in North Carolina. That generally means that an employer (in the absence of a contract to the contrary) may discharge an employee for any reason or whim, but not for a reason that's unlawful or violates "public policy". The doctrine gives employers the right to dictate lawful conditions of the job. The law has less to say about those conditions than many people think, and generally permits an employer to determine where the rights of some employees end and the interests of other employees begin.
Employers may decide that employees must get vaccinated against COVID-19 to protect other employees' interests in not getting sick – subject to legal limits. Insistence on such a condition may come at a price; many employees may regard it as heavy-handed or intolerable. The following focuses more on whether a private employer may lawfully insist on it than on the prudence of doing so.
Employers, as a rule, may impose such a condition. But there are limits.
The Limits
The Americans with Disabilities Act ("ADA") of 1990 prohibits covered employers from discriminating against applicants and employees based on "disability", some of whom may claim that they have a disability that prevents them from being able to submit safely to a COVID-19 vaccination. Such a claim requires an employer to consider whether it has a duty to provide the employee or applicant with a "reasonable accommodation" of the alleged disability.
Such an accommodation – such as exemption from a vaccination requirement – can be required unless providing it would inflict "undue hardship" (i.e., significant difficulty or expense) on the employer. Employers that insist on vaccinations should therefore expect some people to assert that they suffer from a "disability" that entitles them to an exemption.
Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits covered employers from discriminating against applicants and employees based (in part) on "religion." Religion in this context means sincerely held religious beliefs and practices, whether part of an "organized" religion (e.g., Hinduism, Islam, or Christianity) or some other sincere system of spiritual belief. It includes atheism too, but not mere political or personal beliefs or preferences, such as objections to vaccinations unmoored to religious faith; or, for an odd but real example, a “personal religious creed that Kozy Kitten People/Cat Food" contributes to an employee's "state of wellbeing."
As with the ADA, Title VII requires a covered employer confronted with a claim of entitlement to a "religious" exemption from a vaccination requirement to consider whether "reasonable accommodation" is required, because covered employers are required, within reason, to accommodate sincerely held religious beliefs unless that would cause an undue hardship (such as one that would impose more than a negligible cost on the employer's operations or compromised workplace safety).
The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits covered employers from discriminating against applicants or employees based on "genetic information," e.g., information about their own genetic tests, those of family members, or family medical history. Such discrimination can arise from vaccination programs that involve medical screening questions, such as questions about an employee's or family members' medical histories or immune systems.
GINA, according to the U.S. Equal Employment Opportunity Commission, is not implicated when an employer merely administers a COVID-19 vaccine, but risk-averse employers may prefer to seek proof of vaccinations instead of administering them themselves.
The N.C. Persons with Disabilities Protection Act prohibits covered employers from "fail[ing] to hire or consider for employment or promotion," discharging or otherwise discriminating against a qualified person with a disability because of a disabling condition. It generally applies to employers that employ "15 or more full-time employees within the State" and imposes "reasonable accommodation duties."
Because of the varying ways in which the required number of employees is counted, an employer could be covered by the Act but not covered by Title VII, or vice versa. Employers in North Carolina, therefore, need to know which law applies to them so that they can know when reasonable accommodation is required.
The Law of Unintended Consequences
Imposition of a mandatory vaccination policy may be lawful, but may produce unintended consequences, such as alienated employees and potential legal disputes.
Thoughtful employers may therefore opt for a policy that merely encourages employees to get the jab. That may yield almost as many vaccinations as the mandatory approach – and may do more to enhance company cohesion and team-spirit in these troubled times.
A clear written policy, in either case, should be prepared and implemented, after the employer has decided which approach best suits its goals.
This article was originally featured in the June 2021 issue of Business North Carolina.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
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