(Employment Practices -September 2021, Updated December 2021, February 9, 2022)
Q: Can (or must) NY private employers require their employees to get vaccinated for COVID-19?
A: NY State employers should consider federal vaccine mandates (OSHA ETS, CMS Vaccine Mandate, Biden EO 14042),
the following state mandates and the need for reasonable accommodations
and related issues (scroll down for a discussion). NYC employers click here.
On August 16, 2021, NY Governor Cuomo announced that “all healthcare workers in New York
State, including staff at hospitals and long-term care facilities,
including nursing homes, adult care, and other congregate care settings, will
be required to be vaccinated against COVID-19 by Monday, September 27.”
A formal emergency rule was released on September 15, 2021
requiring certain healthcare entities (hospitals, home health agencies, certain
home care programs, hospices, and adult care facilities) to require personnel,
including contract staff and volunteers, to be fully vaccinated against
COVID-19 absent an exemption. On October 5, 2021 Governor Hochul announced
a plan “to expand the healthcare worker vaccine mandate to include employees
who work in certain facilities offering health care to individuals served by
the Office of Mental Health and the Office for People with Developmental
Disabilities. Under the new directive, staff who work in [these] settings
. . . will be required to show proof of at least the first shot
of a COVID-19 vaccine series by November 1, without a test-out option.
Ahead of that requirement, staff in these settings will be required to submit
to weekly testing, if unvaccinated, beginning October 12.”
The governor announced on September 2, 2021 that “the
Public Health and Health Planning Council passed an emergency regulation and
the Health Commissioner issued a determination requiring all teachers, administrators and
other school employees to submit to weekly COVID-19 testing unless they show
proof of vaccination, with either a CDC vaccine card or the Excelsior
Pass. . . . The emergency regulation, which authorizes the Commissioner to
require weekly testing or proof of vaccine, will apply to all schools in New
York State until it is no longer necessary as described in the language of the
regulation."
Effective December 13, 2021, NY's Governor required that masks be worn in all indoor public places unless businesses or venues implement a vaccine requirement (applies to patrons and staff). This mandate will lift as of February 10, 2022 (exception - the school mask mandate continues).
Reasonable Accommodations
In
late 2020, the Equal Employment Opportunity
Commission (EEOC) issued guidance as to employer mandated vaccines
(there has been subsequent updates). In Spring 2021, the EEOC issued a
press release declaring that federal equal
employment opportunity laws “do not prevent an employer from requiring
all
employees physically entering the workplace to be vaccinated for
COVID-19, so
long as employers comply with the reasonable accommodation provisions
of the
ADA and Title VII of the Civil Rights Act of 1964…”
For the EEOC guidance, click here - Section K and Section L.
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 provides 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, 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
proceed cautiously.
Back to Articles and Updates
Disclaimer
Laws related to
COVID-19 are quickly changing. The information provided on this website
is current as of the date shown. You should always contact your lawyer
to determine the current status of any information. The information
contained in
this website is provided solely for the general interest of clients and
friends
of Fellig Schwartz, LLC. This information should not be relied upon or
construed as legal advice and is not a substitute for obtaining legal
advice
from an attorney licensed in your state. Fellig Schwartz, LLC assumes
no
liability or responsibility for any errors or omissions in the content
of this
website. The use of our website is not intended to and does not
establish an
attorney-client relationship. Please do not send us confidential
information
via e-mail without first obtaining permission to do so from one of our
attorneys.
In some jurisdictions, this
World Wide Web site may be considered to be advertising. The choice of a lawyer
is an important decision and should not be based solely upon advertisements, or
upon written information contained on this website.
Questions
regarding our website may be sent to aschwartz@felliglaw.com
or you may call 201-996-0024.