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Know Your Workplace Rights: Vaccines

Posted by Giovanna A. D'Orazio | Dec 10, 2020

UPDATE 12/23/2020: Since this article was first published, two vaccines have now been approved and are being administered.  The EEOC also issued updated guidance relating to COVID-19 in the workplace, including vaccines, that can be reviewed here.  Section K pertains to vaccines.  In addition to the disability and religion issues we discussed in the original article, the EEOC has also addressed pregnancy (Section J).  There is no guidance specifically with respect to pregnancy and vaccines, but any time an employee is pregnant, the pregnancy and sex discrimination laws can be implicated, as well as disability laws if a medical condition rises to that level, and the FMLA.  New York law also protects pregnancy and does require accommodations for pregnancy related medical conditions (unlike federal law). 

A COVID-19 vaccine is imminent.  For many, this is wonderful news.  For others, there are concerns about whether they will be “forced” to get the vaccine.  Some have reservations about the safety of the vaccine, and others simply do not want to be told what to do. [Update: since this article was first published, the vaccine has been approved].

As a general matter, vaccine requirements are commonplace. We see them in schools as well as in the workplace.  And, as a general matter, they are permissible.  There are two main issues that come into play in the workplace: individuals with disabilities and individuals whose religious beliefs prevent them from taking a vaccine.

Under the Americans with Disabilities Act (ADA), individuals with disabilities are entitled to reasonable accommodations that do not pose an undue burden on the employer.  If an employee has a disability within the meaning of the law, and that disability renders that employee unable to take the vaccine, and not taking the vaccine doesn't pose an undue burden on the employer (or cause the employee to pose a direct threat in the workplace), then an exception may be appropriate.  Otherwise, it is the EEOC's position that mandatory vaccines do not run afoul of the ADA. 

To that end, the EEOC’s Pandemic Preparedness in the Workplace publication has been updated for COVID-19.  While Number 13 on vaccines is related to the flu vaccine (because at the time of the publication there was no approved COVID-19 vaccine), the analysis should be the same.  Back in 2009, in response to the H1N1 influenza outbreak, OSHA also indicated that employers may require flu vaccines

Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination.  Like the ADA, reasonable accommodations of an employee's sincerely held religious beliefs are required under the statute.  Accordingly, the EEOC takes the same position on religious exemptions to vaccine requirements (except to note that it is easier for an employer to meet the burden standard in a religion case than a disability case).  In this polarized country we are living in, it's important to note that political beliefs are not religious beliefs.

The New York State Human Rights Law has similar workplace disability and religion protections and the outcome is likely to be the same (i.e., vaccine requirements generally permissible).  Last year, New York actually removed the religious exemption for school children's vaccines in response to measles outbreaks, which was upheld in a court challenge.  In the workplace, there are already existing vaccine requirements for healthcare personnel in New York.

For a legal perspective, the New York State Bar Association has expressed its support for mandatory vaccinations if necessary. 

Ultimately, due to individual sensitivities or reservations about taking a new vaccine, the EEOC suggests that employers encourage the vaccine rather than mandate it. 

As with all employment cases, every situation is different and depends on its own set of facts.  What may be reasonable in one workplace, may not be reasonable in another.  And, most importantly, to have any protection, an employee must fall within a protected class: an actual disability or a sincerely held religious belief.  A general or political objection, or simply not wanting to be told what to do, is not going to be enough.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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