Can Your Employer Require You To Get the COVID-19 Vaccine?

Covid-19 VaccineThe Equal Employment Opportunity Commission (EEOC) guidelines allow employers to legally require their employees to get vaccinated against diseases that have been identified as pandemics, like COVID-19, for the purpose of protecting the safety of the general public. This is assuming they can establish that it is a legitimate job requirement and that they will make reasonable accommodations for workers who cannot receive the vaccine.

It is an employee’s legal right to refuse the vaccine due to medical conditions or religious beliefs.

Medical Exception. The FDA has recommended that individuals who have had an allergic reaction to any of the ingredients in the vaccine should avoid getting it. Some immunocompromised individuals may need to avoid the vaccine as well. The Americans with Disabilities Act (ADA) protects employees that are unable to receive the vaccine. This Act requires employers provide accommodations to their employee. The employee may need to show proof of an ADA recognized disability that prevents them from taking the vaccine and that this exemption does not impose an undue hardship on the employer.

Religious Exception. Title VII of the Civil Rights Act of 1964 protects people who refuse to get the vaccine due to a held religious belief. The definition of religion is broad and certain practices may be unfamiliar to the employer. So, the EEOC suggest that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a “sincerely held religious belief, practice, or observances.” Typically, companies must take what the employee says at face value, but they can ask for more information if they have an objective basis for questioning the authenticity of a faith claim. More detailed investigations may involve asking the employee to provide any vaccination history and how closely they follow through with their religious training that is required.

These protections are not requiring that an employer must allow you to continue working under normal conditions. However, it is stating that when an employee refuses the vaccine because of medical or religious reasons, the employer must provide any qualified employee with reasonable accommodations.

The EEOC defines a reasonable accommodation as “a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.” In the case of Covid-19, this may include requiring the employee to wear extra personal protective equipment, allowing them to work remotely, separating them from others on the workplace, or allowing a leave of absence. If an employer can achieve the same level of safety as the vaccine by making accommodations, they cannot terminate the employee.

Both the ADA and Title VII create an exception to the employer’s obligation of providing reasonable accommodations in the event of undue hardship. Title VII only requires that the hardship pose more than a de minimis cost on business operations. This means that the accommodation results in significant difficulty or expense to the employer, considering the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.

To lawfully bar an employee from his employment or employment- related activities, the employer must show that the unvaccinated employee creates a direct threat of risk to the workplace that cannot be eliminated or reduced by reasonable accommodations. A “direct threat” must be based on objective and factual information, not just subjective assessments. According to EEOC regulations, determining whether an employee presents a direct threat depends on the duration of the risk, the nature and severity of the potential harm, the likelihood that potential harm will occur, and the imminence of the potential harm.

For example, if an unvaccinated employee’s job requires them to regularly interact with vulnerable individuals such as in care facilities, an employer will likely have an argument of undue hardship. But, if an employee with a typical office job refuses vaccination for medical or religious reasons, an employer is unlikely to have a claim for undue hardship.

If an employee simply refuses to get a vaccine and does not have a protected reason that can be accommodated, he may be terminated. But, if an employer discharges an employee without showing undue hardship or that a direct threat existed, the employee may bring a discrimination claim against their employer under Title VII or the ADA.

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