(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.” The NY State Department of Health issued an Order for Summary Action on August 18, 2021 requiring all healthcare workers at hospitals and nursing homes in NY to be vaccinated against COVID-19 by September 27, 2021 with limited exceptions for religious or medical reasons. 

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. 

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