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CAN MY EMPLOYER REQUIRE ME TO GET A COVID-19 VACCINATION?

The answer is “Yes” with some exceptions.  Your employer must consider the requirements of the Americans with Disabilities Act (“ADA’)  and Title VII of the Civil Rights Act of 1964 (“Title VII).  Both of these statutes are complex.   They protect against workplace discrimination based on disability or religious belief.  What follows is a  summary of those statutes and how they relate to Covid-19 vaccinations.  This is not intended to be legal advice.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces civil rights laws against workplace discrimination.  It has published guidance on covid-19 relating to employment.  In December of 2020, it added a section (K) that directly addresses the vaccine.  Written in Q & A format, it is a good resource:  https://bit.ly/3nvFtSB

The ADA – Disability

This statute prohibits discrimination in employment against a qualified individual with a disability (among other things).  The US Department of Labor has more on this: https://bit.ly/2LDH1gm

Under the ADA, you are considered “disabled” if you have a physical or mental impairment that substantially limits a major life activity,  such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

If you have a disability-related reason for refusing a vaccination mandated by your employer, you must inform your employer and request a “reasonable accommodation” for your disability.  Not all disabilities will disqualify a person from receiving the vaccine.  Within certain limits, your employer may require you to provide appropriate documentation to support your statement that you are disabled and require accommodation.

In the context of Covid-19, reasonable accommodations may include such measures as wearing a mask, working remotely, or reconfiguring the workspace.  You and the employer are expected to engage in an “interactive process” regarding if and how your inability to be vaccinated can be accommodated.  This analysis is very fact-specific, depending entirely on your individual circumstances, your job duties, the work environment and any hardship it may cause the employer.

Title VII – Religion

Title VII provides protection for employees based on a sincerely held religious belief, practice or observance (among other protections.)  A sincerely held religious belief, practice or observance does not include “personal convictions.” The EEOC guidance (referenced above) addresses the situation when an employee seeks an exemption for the workplace vaccination requirement based upon religious belief.

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” in the context of religious accommodation as having more than a de minimus cost or burden on the employer.  The employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Conclusion

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

You should inform your employer as soon as possible if you are invoking the protections of the ADA or Title VII.  You may inform your employer verbally, but it would be wise to also put all communications about this into writing so that you have a paper trail should legal action be necessary. These laws protect you against being terminated or retaliated against for requesting an accommodation under the ADA or Title VII.