Q: Can private employers legally require COVID-19
vaccinations for their employees?
A: The answer is ...
There is no clear answer. Recent developments make it more likely that employer mandated COVID-19 vaccination are permissible. Still, the issue is incredibly complex. Employers should tread carefully when considering a mandated vaccination policy.
This year, NJ passed a law mandating that hospitals, nursing homes, and home health care agencies must require their employees to take the influenza vaccine. This law applies to employees with and without direct patient contact. Given the severity of COVID-19, its high contagion and mortality rates, and its effect on the economy, together with the NJ legislature’s willingness to adopt a somewhat broad approach to influenza vaccination, some believe that NJ courts may find employer mandated COVID-19 vaccinations permissible, so long as those mandates comply with other federal and state employment laws. While NY's law is far more limited than NJ's, EEOC guidelines issued on December 16, 2020 (see section K) make it more likely that employer mandates as to a COVID-19 vaccination may pass muster in both states.
The EEOC guidelines indicate that employers will be able mandate COVID-19 vaccination without violating federal anti-discrimination laws in certain circumstances. The EEOC described a permissible basis for employers to require vaccination under the Americans With Disabilities Act (ADA) when an employee poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized. If employees would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”, vaccination can be required. If employees are capable of fully performing their current job duties remotely, it does not appear that the employer can require employee vaccination.
EEOC guidance and federal and state laws make clear that employers that require the COVID-19 vaccination must consider reasonable accommodations for employees with disabilities and for employees who are unable to be vaccinated for religious reasons. An employee could be entitled to an exemption from a mandatory vaccination under the ADA if the employee has a disability that prevents her from taking the vaccine. This exemption would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship (significant difficulty or expense) to the employer.
Additionally, under Title VII, once an employer receives notice that an employee’s sincerely held religious belief or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer. Undue hardship under Title VII is a lower standard than under the ADA - religious accommodation requests need not be granted if they result in more than a de minimis cost to the operation of the employer’s business.
If no reasonable accommodation is possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude” the worker from the workplace. This does not necessarily mean that the employer can terminate the worker.
In addition to the ADA and Title VII, as well as similar state laws, the Occupational Safety and Health Act of 1970 (OSHA) provides that an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (like a serious reaction to the vaccine) may be protected.
Another area to consider is compliance with the National Labor Relations Act (NLRA). It is likely that employers with labor unions cannot unilaterally implement a mandated vaccination program without first bargaining with their unions. And, if groups of employees (unionized or non-union) band together and refuse to be vaccinated, this may constitute protected concerted activity under federal as well as state or local laws. There are also state laws that might provide protection to employees who protest mandatory vaccinations, including state “lawful off-duty activities” statutes (NY has such a law), which prohibit employers from terminating employees for engaging in lawful activities outside of their workplaces.
The complexities presented by these issues cannot be taken
lightly. Employers considering mandated COVID-19 vaccination programs must
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