Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
As COVID-19 vaccines become available, you may find your employer encouraging, or mandating, vaccination to slow the spread of the virus and to keep yourself, co-workers, customers, and the general public, healthy. Below are some scenarios that might come up and an explanation of your rights should you face one of these situations.
Can my employer ask for proof that I have received the COVID-19 vaccine?
Yes. According to Equal Employment Opportunity Commission [“EEOC”] guidance, your employer can ask for proof that you have received the COVID-19 vaccine. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger Americans with Disabilities Act [“ADA”] (42 USC §12101, et seq.) protections. This means your employer is free to ask if you have been vaccinated and ask for documentation of this. Should your employer ask for proof that you have received the COVID-19 vaccine, make sure you don’t accidentally turn over any additional personal health information. If your employer presses you for information about why you have not received the vaccination and your response requires sharing information about your disability, it may be time to consult an attorney to discuss your rights.
Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?
Yes. According to EEOC guidance, when your employer mandates vaccination for protection against contracting COVID-19, administration of the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. The EEOC’s interpretation allows your employer to demand that you receive the vaccine as a condition of employment. However, if your employer mandates COVID-19 vaccination, you have the right to request a reasonable accommodation if you either cannot, or will not, be vaccinated for medical reasons or sincerely held religious beliefs. If you cannot receive the vaccination and you request an accommodation, keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely can’t come up with a reasonable accommodation, the likely result is termination.
Do I have ADA protection if my employer administers the COVID-19 vaccine and my disability prevents me from receiving the vaccine?
Yes. The pre-vaccination medical screening questions are likely to elicit information about your disability. According to EEOC guidance, when these questions are asked by your employer (or a contractor on your employer’s behalf), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.
You should not be summarily fired for refusing to get vaccinated because of your disability. Instead, your employer should determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation. If your disability prevents you from being vaccinated and you request an accommodation, keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.
To assess the risk of having you at the workplace unvaccinated, your employer must conduct an individualized assessment to determine whether your presence in the workplace creates a direct threat to yourself or others. According to EEOC guidance, a conclusion that there is a direct threat would include a determination that you, as an unvaccinated individual, will expose others to the virus at the worksite. If the individualized assessment results in a finding of direct threat, your employer should include you in an interactive process to determine if there is a reasonable accommodation that would allow you to continue to work.
As advised by the EEOC, your employer may lawfully exclude you from the physical workplace, but you should not be summarily fired, otherwise disciplined, or suffer retaliation for refusing the vaccination. Instead, your employer should evaluate whether an accommodation, such a teleworking, is an option. If there is no accommodation available, your employer should determine if you are eligible to take leave under federal, state, or local leave laws, including the Family and Medical Leave Act, or under the employer’s leave-of-absence policies.
Can I be fired if my employer requires a COVID-19 vaccination as a condition of employment and I am unwilling to get vaccinated because of my religious beliefs?
You should not be summarily fired if you refuse to get vaccinated based on your religious beliefs. If your religious beliefs prevent you from getting vaccinated, and you request an accommodation, keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, the likely result is termination.
It is important to notify your employer that your religious beliefs prevent you from receiving the COVID-19 vaccine. Given the breadth of the EEOC’s definition of religion, your employer is unlikely to question the nature of your beliefs, however, take note that your religious belief, practice, or observance that prevents you from receiving the vaccine must be sincere.
Once your employer is on notice, you must be provided a reasonable accommodation that allows you to continue work without receiving the vaccination unless the accommodation poses an undue hardship on your employer. Courts have defined “undue hardship” in this context as having more than a de minimis cost or burden on the employer. The determination of whether an accommodation is reasonable often turns on the nature of your job and your employer’s business. Depending on your job duties, your employer might allow you to continue to work wearing additional PPE or have you reassigned to an available position that limits interaction with others, including remote work.
If there is no reasonable accommodation that would allow you, as an unvaccinated employee, to continue your job it would be lawful for the employer to exclude you from the workplace. If there is no accommodation available, your employer should determine if you are eligible to take leave under federal, state, or local leave laws, including the Family and Medical Leave Act, or under the employer’s leave-of-absence policies.