Vaccination and Testing of City Employees for COVID-19

Published: December 21, 2020

(Updated Jan. 20, 2022)

Disclaimer: Like many COVID-19 issues, the topic of vaccination is new, and the area of law is frequently updated. Recommendations may change as additional information is received.

NOTE:

On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS) issued an order stopping the OSHA Vaccination and Testing ETS for employers with 100 or more employees from being implemented. MNOSHA issued a statement the same day that they would not be enforcing the ETS pending future developments. The information on this page will be updated soon to reflect the order. Read the SCOTUS order (pdf)

Find more information on COVID-19 vaccinations at:

Note: All FAQs were updated on Jan. 20, 2022.

Get answers to these FAQs about vaccination of city employees for COVID-19:

Q1. Can a city require an employee to be vaccinated for COVID-19?

Q2. If a city requires vaccination, does it have to pay for the COVID-19 vaccination and employee time to receive it?

Q3. If the city mandates vaccines and an employee experiences an adverse reaction to the COVID-19 vaccine, is there liability for the city?

Q4. If an employer requires COVID-19 vaccinations, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination for medical reasons?

Q5. If an employer requires COVID-19 vaccinations, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

Q6. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory COVID-19 vaccine policy because of a disability or sincerely held religious practice or belief?

Q7. Is an employer allowed to ask if an employee has been vaccinated for COVID-19 and retain that information?

Q8. If the city does not mandate COVID-19 vaccines and an employee with COVID-19 infects a member of the public, is there liability to the city?

Q9. Can the city require some groups of employees to be vaccinated for COVID-19 and not others?

Q10. If an employee is eligible to receive the COVID-19 vaccine and refuses, can the city require the employee to sign a waiver of workers’ compensation benefits?

Q11. Can the city use ARPA funds to pay for a vaccination or testing program for city employees?

 

Q1. Can a city require an employee to be vaccinated for COVID-19?

A1. Employers generally can require vaccinations if there is a business necessity. The answer also depends on a variety of factors and a city must consult with legal counsel before implementing any COVID-19 vaccination policy..

A city will also want to consult the Equal Employment Opportunity Commission’s (EEOC) guidance on workplace vaccination questions. For city employers encouraging or possibly requiring COVID-19 vaccinations, all policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws.

In accordance with the Minnesota Government Data Practices Act, a Tennessen warning should be used when collecting private or confidential information. Thus, when requiring employees to submit proof of vaccination or regular COVID-19 testing, a Tennessen warning should be provided to employees.

Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related qualification standard requiring COVID-19 vaccination.  However, if a particular employee cannot meet the city’s safety-related qualification standard because of a disability, the city may not require compliance for that employee unless it can demonstrate that the employee would “pose a direct threat to the health or safety of individuals in the workplace.” When considering any COVID-19 vaccination policy, keep in mind an employee seeking exemption because of religious beliefs or a disability will require an individualized assessment for a reasonable accommodation. As the EEOC’s guidance on EEO laws notes, managers and supervisors should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees will then engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). In 2021, the Minnesota legislation amended the Minnesota Human Rights Act to specifically require this interactive process.)

If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” per ADA requirements and standards due to 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.” Generally, the EEOC regulations identify four factors to determine whether a direct threat exists:

  1. The duration of the risk.
  2. The nature and severity of the potential harm.
  3. The likelihood that the potential harm will occur.
  4. The imminence of the potential harm.

That said, the CDC, MDH, and numerous other federal, state, and other entities have determined that COVID-19 poses a significant threat to health and safety, including in the workplace, such that the existence of a direct threat is going to be assumed. Keep in mind, under the ADA, employers are required to maintain the confidentiality of all employee medical information, including documentation or other confirmation of a COVID-19 vaccination. Learn more in the EEOCs Technical Assistance FAQ #K.4.

If an employee who cannot be vaccinated poses a direct threat to the workplace, a city will want to work with legal counsel to consider whether a reasonable accommodation can be made through a flexible, interactive process, such as allowing the employee to work remotely or take a leave of absence. Again, due to the legal complexities involved with requiring COVID-19 vaccinations, we are hearing many cities are opting to encourage vaccinations instead.

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Q2. If a city requires vaccination, does it have to pay for the COVID-19 vaccination and employee time to receive it?

A2. Very likely, yes to both questions. The Fair Labor Standards Act requires employees be compensated during the time spent for city-mandated vaccinations. Federal ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose. The paid sick leave can be in the form of an employee’s accrued sick leave if available and employers may set a reasonable cap on the amount of paid sick leave available.

For unvaccinated employees participating in weekly tests, the federal OSHA regulations note the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings, but that employer payment for testing may be required by other laws, regulations, or collective bargaining agreements. Minnesota law (Minn. Stat. § 181.61) requires employers to pay for testing as noted ) in question #19 in the “Employer Questions” (pdf) from the Minnesota Department of Labor and Industry: “When an employer requires an employee or applicant to undergo a medical evaluation, including a COVID-19 test, in order to work, Minnesota law requires that the employer pay the cost of the test or medical examination.”

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Q3. If the city mandates vaccines and an employee experiences an adverse reaction to the COVID-19 vaccine, is there liability for the city?

A3. Yes. If a city requires its employees to get vaccinated for COVID-19, that city will likely have workers’ compensation liability for any adverse reactions. A city’s requirement that its employees get vaccinated would be a term and condition of employment. It follows that any adverse reaction to a required vaccination arises out of the employment and, therefore, would fall under the workers’ compensation framework.

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Q4. If an employer requires COVID-19 vaccinations, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination for medical reasons?

A4. Generally, the Americans with Disabilities Act (ADA) requires city employers to provide reasonable accommodations to those with disabilities, unless an accommodation would be an “undue hardship” to the city employer, meaning significant difficulty or expense. The accommodation process should be an individualized, interactive process between the employer and employee. To facilitate this process, the League offers a Medical Exception Request form.

View a COVID-19 Vaccination Medical Accommodation Request Form (doc)

The U.S. Equal Employment Opportunity Commission’s (EEOC’s) latest guidance  (released Dec. 16, 2020) states that the ADA allows an employer to have a  qualification standard, such as a mandatory vaccination policy, that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat due to 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.” (Federal regulation 29 C.F.R. 1630.2(r).)

Employers should conduct an individualized assessment of the following four factors in determining whether a direct threat exists:

  1. The duration of the risk.
  2. The nature and severity of the potential harm.
  3. The likelihood that the potential harm will occur.
  4. The imminence of the potential harm.

That said, the CDC, MDH, and numerous other federal, state, and other entities have determined that COVID-19 poses a significant threat to health and safety, including in the workplace, such that the existence of a direct threat is going to be assumed.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the Equal Employment Opportunity (EEO) laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the ADA, MHRA, Family and Medical Leave Act (FMLA), and/or the city employer’s policies.

Read more on EEO rights relating to pregnancy (Section J)

Managers and supervisors responsible for communicating with employees about compliance with the employer’s COVID-19 vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy. Read more from the EEOC about COVID-19 and complying with EEO laws. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, including JAN materials specific to COVID-19. To facilitate the interactive process, contact the League for sample forms.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in the EEOC guidance regarding reasonable accommodation (Question K.7.), there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.

Managers and supervisors are reminded it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

Read more about accommodations: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

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Q5. If an employer requires COVID-19 vaccinations, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

A5. In late October 2021, the EEOC updated its guidance for employers on handling employee religious objections to COVID-19 vaccine mandates.  The EEOC states, while employees do not need to use any “magic words” such as “religious accommodation” or “Title VII,” employees do need to notify the employer there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.  The EEOC states, as best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation from COVID-19 vaccine mandates.

According to the October 2021 EEOC Guidance, generally, under Title VII, an employer should assume a request for religious accommodation is based on a sincerely held religious belief.  However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer can make a limited factual inquiry into the sincerity or nature of the religious belief and request additional supporting information.  If an employee fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief, the employee risks losing any subsequent claim the employer improperly denied an accommodation.

The EEOC Guidance also notes, the definition of “religion” under Title VII protects non-traditional religious beliefs that may be unfamiliar to employers. Accordingly, employers should not assume a request is invalid merely because it is based on an unfamiliar religious belief, but employers may ask employees to explain the religious nature of their belief and employees should not assume the employer already knows or understands it.   By contrast, Title VII does not protect social, political, or economic views, or personal preferences.  Section 12-I.A.1: Religious Discrimination (definition of religion).  Thus, per the EEOC Guidance, objections to COVID-19 vaccination based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII and therefore would not require accommodation.

  • EEOC Guidance also notes sincerity of an employee’s stated religious beliefs is not usually in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.”  Section 12-I.A.2: Religious Discrimination (credibility and sincerity).  Factors that – either alone or in combination – might undermine an employee’s credibility include whether:
  •  The employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance)?
  • The accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons?
  • The timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)? and
  • The employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how an employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

In L.5 of the EEOC Guidance, the EEOC notes, an employer is not required to provide the religious accommodation preferred by an employee if there are other possible accommodation that do not cause an under hardship. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

In L.4 of the Guidance, the EEOC notes just because an employer grants one or some religious accommodation requests does not mean the employer must grant all such requests. The determination of whether a particular proposed accommodation imposes an undue hardship “depends on its specific factual context.” When an employer is assessing whether exempting an employee from getting a COVID-19 vaccination would impair workplace safety, it may consider, for example:

  • The type of workplace
  • The nature of the employee’s duties
  • The number of employees who are fully vaccinated
  • How many employees and non-employees physically enter the workplace, and
  • The number of employees who will in fact need a particular accommodation.

An assumption or fear that granting one religious accommodation will result in many more employees seeking a religious accommodation in the future is not evidence of undue hardship.  However, the EEOC notes, employers may take into account the cumulative cost or burden of granting accommodations to other employees.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation. If the city employer has doubts or concerns about an employee’s request, it should work with its city attorney to obtain additional information.

The League offers a form to facilitate the interactive process of determining whether a reasonable accommodation is required for an employee with a sincerely held religious belief.

View a COVID-19 Vaccine Religious Accommodation Request Form (doc)

Like all ongoing reasonable accommodations absent undue hardship, it is important to take into account changing circumstances as time progresses. Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations.  Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Cities will want to keep in mind under the ADA, it is unlawful for an employer to disclose an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.

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Q6. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory COVID-19 vaccine policy because of a disability or sincerely held religious practice or belief?

A6. In late October 2021, the EEOC updated its guidance for employers on handling emloyee religious objections to COVID-19 vaccine mandates. In that Guidance, it reads, under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodations for unvaccinated employees, the EEOC suggests consulting Job Accommodation Network (JAN) website materials about COVID-19  resources. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. The EEOC states, even if there is no reasonable accommodation to allow an unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible. The EEOC advises employers to consider all the options before denying an accommodation request. That said, the CDC, MDH, and numerous other federal, state, and other entities have determined that COVID-19 poses a significant threat to health and safety, including in the workplace, such that the existence of a direct threat is going to be assumed.

The ADA requires employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.

If an employer demonstrates it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. The Supreme Court has held requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.  Note that this is a much lower standard for employers to meet than under the ADA. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public. Courts have found Title VII undue hardship when, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

An employer will need to assess undue hardship by considering the particular facts of each situation (i.e., a case-by-case analysis) and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

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Q7. Is an employer allowed to ask if an employee has been vaccinated for COVID-19 and retain that information?

A7. Generally, employers can ask about vaccinations of employees when the inquiry is job-related and there is a business reason for doing so, such as protecting the safety of other workers.  As noted in EEOC FAQ K.-3., simply requesting proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. However, any subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”

See FAQ # 10 regarding a Tennessen warning should be provided when collecting private or confidential information such as when asking employees to submit proof of vaccination or regular COVID-19 testing.

If an employer requires an employee to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA. Further, HHS guidance states that HIPAA privacy rules do not prohibit any person (e.g., individual or an entity such as a business), including HIPAA-covered entities and business associates, from asking whether an individual has received a particular vaccine, including a COVID-19 vaccine. Thus, HIPAA privacy rules do not apply when an individual is asked about their vaccination status by an employer. Additionally, to help avoid ADA risk with any COVID-19 vaccination inquiry, an organization will want to design questions in a way that does not elicit information regarding a person’s disability, nor inquire why an individual did not receive a vaccination.

Employers requiring vaccinations must maintain records of vaccinations in the employee’s non-public data file and in accordance with ADA and Minnesota Data Practice laws. OSHA requires vaccinations and records for certain positions.

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Q8. If the city does not mandate COVID-19 vaccines and an employee with COVID-19 infects a member of the public, is there liability to the city?

A8. There is no legal precedent on this issue. Having a strong preparedness plan where the city is doing everything it can to ensure employees are following health and safety guidance is encouraged and will help establish any legal immunity defenses. Currently, COVID-19 is considered to be widespread in our communities so proving causation may also be difficult.

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Q9. Can the city require some groups of employees to be vaccinated for COVID-19 and not others?

A9. In general, yes, the city can distinguish between groups of employees when the differences are job related and there is a good business reason for doing so. For example, the city may wish to require employees who have duties associated with closer contact with the public to be vaccinated (e.g., police, firefighters, reception desk staff) while not requiring employees who have little interaction with the public (e.g., internal finance staff). However, the city should carefully think through such a policy and be prepared to justify the differentiation.

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Q10. If an employee is eligible to receive the COVID-19 vaccine and refuses, can the city require the employee to sign a waiver of workers’ compensation benefits?

A10. No. The Minnesota Workers’ Compensation Act provides that injuries arising out of and in the course of employment shall be covered by workers’ compensation. Any such waiver of rights would likely not be enforceable under the workers’ compensation laws.

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Q11. Can the city use ARPA funds to pay for a vaccination or testing program for city employees?

A11. Yes. Paying expenses related to responding to the public health emergency, including vaccination programs and testing, is an eligible use. ARPA funds may be used for eligible expenses incurred between March 3, 2021, and Dec. 31, 2024.

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