With the arrival of the coronavirus vaccine, it has become a little easier to picture a time when more people return to their workplace. But when that day inevitably comes, will it also come with the reassurance that co-workers have gotten vaccinated? More specifically, the issue is whether employers can require workers to get the Covid-19 vaccine? The general answer is “Yes.” However, this does come with some limitations.
The Equal Employment Opportunity Commission (EEOC) enforces and educates people about employment issues, including providing guidance and instructions on how to handle workplace compliance with the pandemic issues. Two laws are relevant here: Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, (ADA).
Under Title VII, an employer must accommodate the sincerely held religious belief, practice, or observance of an employee, unless it would cause an undue hardship on the business. Courts have held that an “undue hardship” is created by an accommodation that has more than a small cost or burden on the employer.
The definition of religion is broadly defined to include religious beliefs and practices that may be unfamiliar to the employer. If an employee can’t get the vaccine because of their religion and a reasonable accommodation isn’t available, then the individual may be excluded from physically entering the worksite. However, it doesn’t necessarily mean that they would be fired. According to the EEOC, “employers will need to determine if any other rights apply under other federal or state authorities.”
Under the ADA, an employer can have a policy that includes a “requirement than an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If an employee doesn’t want a vaccine, the employer has to evaluate the risk that their refusal poses, especially if the employer is requiring that employees get vaccinated.
The EEOC states that employers should evaluate four factors to determine whether there is a direct threat:
· The duration of the risk
· The nature and severity of the potential harm
· The likelihood that the potential harm will occur
· The imminence of the potential harm
Regarding these evaluations, the type of work would likely make a difference in determining whether a direct threat exists. For instance, if you’re a health care professional in contact with patients, being vaccinated could have a direct impact on you performing your job because you may not be able to do it safely without risk to other employees and patients.
If you’re an office worker, you may be accommodated by using personal protective equipment, working remotely or working in a separate area.
What Employers Can Do Instead of Forced Vaccinations
Although employers may have the ability to mandate vaccinations, they may be more likely to encourage or offer incentives to their employees rather than issue a requirement.
Talk to an Employment Law Attorney about Your Rights
If you’re concerned about your standing regarding vaccination by your employer, then you should seek help from a skilled attorney who can provide insight on this and other employment issues. Reach out to the experienced New York employment lawyers at MOWK Law. Contact us today to take the next steps.