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Our Take: Your employer’s COVID vaccine requirement is not the hill you want to die on.

Posted by Giovanna A. D'Orazio | Sep 08, 2021 | 0 Comments

We are getting lots of inquiries from employees who want to challenge their employer's vaccine requirements.  Because we handle litigation cases after someone has been fired, and not general employment consultation, we can't speak to everyone who comes our way, and we thought it might be useful to post our take on this issue.

Full disclosure: we are vaccinated and, as parents of kids who are too young to be, we do wish that everyone who is able to would receive the vaccine.  That being said, lawyers are trained to draw conclusions from what law is, not necessarily what they wish it to be, and if the law allowed you to opt out of vaccine requirements we'd certainly let you know.  But, with limited exceptions, that's not how we think things will shake out.

[Update: Since the original date of this article, a federal judge in NY temporarily blocked NY's vaccine mandate for healthcare workers in a lawsuit alleging that the law is unconstitutional and discriminatory because it does not allow for religious exemptions.  As we discuss further below, vaccine mandates are generally legal when they do include avenues for requesting a religious or a disability accommodation.  This temporary block does not actually decide the case on the merits which will come later.  It also does not mean that an individual is automatically entitled to an accommodation or exemption when they raise a religious objection.]

The Legal Issues

As a general matter, mandatory vaccines in the workplace are not only permissible but nothing new.  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, 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.  Vaccines are address in Section K of the EEOC’s COVID-19 guidance

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).  Within the last couple of years, 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, prior to COVID, there were already existing vaccine requirements for healthcare personnel.

It's probably worth mentioning that the NYS Unified Court system recently implemented mandatory vaccines, or weekly COVID testing, for court personnel and judges.  This is probably as good of an indication as you are going to get that the law is not going to go in your favor unless you fall within one of the disability or religion categories (AND assuming a reasonable accommodation exists).

It should also be noted that, if your employer allows you to be unvaccinated, but then requires masks, social distancing, and COVID testing, that is okay too.  We recently received an inquiry from someone who did not want to receive the vaccine (no reason given) but also had a “moral objection” to being COVID tested.  This is not going to fly.  We'll talk about this more later, but your employer has an obligation to keep EVERYONE in the workplace safe and a free for all that goes against CDC and OSHA guidance is not prudent.

Our Two Cents as Employment Lawyers

In our experience representing people who have lost their jobs, we've gained some perspective as to not only the legal issues but the impact that unemployment can have on someone's life.  To voluntarily give up your job if you do not have a legal leg to stand on is simply not something we would recommend (unless money is no object, of course).  The financial as well as the mental health toll of unemployment cannot be overstated.  And on the financial piece, don't forget that voluntarily resigning your position typically disqualifies you from unemployment benefits.

Practically, vaccine mandates are going to become more commonplace.  So, it's very likely that, if you quit and go to look for another job, you are going to run into the same requirements (and will likely be asked about the circumstances of leaving your last job).  This is virtually certain to happen in the healthcare setting.

While we typically represent employees, this is a situation where it's important to look at the employer's perspective as well.  Employers have an obligation to provide a safe workplace and new OSHA guidance encourages vaccine mandates.  From the employer's perspective, they are probably better off fighting against one or two vaccine hold outs, who are unlikely to have legal recourse if they get fired, than to have to deal with a potential safety issue for the entire workforce. 

Finally, we represent a lot of victims of discrimination, particularly individuals with disabilities. There is still stigma associated with disabilities, especially mental health issues, in the workplace.  PLEASE do not claim a disability if you don't actually have one or pressure your doctor into giving you a note if you do not really need one just to get out of a vaccine requirement.  This only serves to perpetuate prejudices against individuals who really need accommodations. 

Take Away

Quite simply, unless you have a disability or a sincerely held religious belief – and are prepared with a reasonable accommodation that makes you able to perform the functions of your position – mandatory vaccines should not be your hill to die on.

If you are nervous and genuinely trying to do the right thing, we suggest speaking to your primary care physician about your concerns so that you do not take an unnecessary risk with your employment.  If you are holding out because you don't want to be told what to do, there's probably not much we can say to change your mind at this point, but it is important to know that it's unlikely that you would be successful in a legal challenge against your employer.

This blog post is not legal advice and is not intended to be relied upon in taking action at work.  All situations are unique and dependent upon their own set of facts.  If you are considering leaving your job due to vaccine requirements, you should consult with an attorney to be sure you understand the risks and options given your own particular situation. 

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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