CAN MY EMPLOYER REQUIRE ME TO GET A COVID VACCINATION?
March 9, 2021
As of early March 2021, the United States has vaccinated 15.3% of its population against COVID-19, totaling 76,899,987 doses administered out of 96,402,490 doses distributed. This was before the new one-shot Johnson & Johnson vaccine had been approved or distributed. Here in California, 16% of the population has been vaccinated.
As the nation attempts to return to “normal” as much as possible, the question looms: can an employer require employees to be vaccinated before returning to work?
The answer is mostly yes, with some exceptions.
If you’re an employee whose place of work requires you to be vaccinated before entering the premises and you don’t want to be vaccinated for religious or other reasons, what are your options? Can you be terminated if you refuse to be vaccinated?
If you find yourself in this situation in or around Temecula, Costa Mesa, or Stockton, California, contact our team at Robinson Bradford LLP. Our attorneys can advise you of your rights and, if need be, represent you in legal action against your employer if they have violated those rights.
EEOC Vaccination Guidance
In December 2020, as the vaccines began to be rolled out, the EEOC issued guidance on whether employers can enforce vaccination mandates, ruling that yes, they can, provided they exempt employees with disabilities or religious objections. For those employees, they must provide “reasonable accommodations” such as working remotely or being reassigned.
At the same time, however, an employer can prohibit employees from entering the workplace if they haven’t been vaccinated. The EEOC cautions that “this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under EEOC laws or other federal, state, and local authorities.”
Vaccinations & the ADA
If an employee cannot or declines to take the vaccination due to a disability, the Americans with Disabilities Act requires that the employer show that the employee poses a “direct threat” to others in the workplace before excluding the worker. Specifically, a direct threat is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Employers should consider four factors before determining whether a direct threat exists:
The duration of the risk
The nature and severity of the potential harm
The likelihood that potential harm will result
The imminence of the potential harm
Again, however, the emphasis is on conducting an ADA-mandated “flexible, interactive process” between the employer and employee to arrive at a reasonable accommodation. The EEOC guidance mentions telework, or even leave under the Family and Medical Leave Act (FMLA) or other state programs, as reasonable accommodations. Other accommodations might include wearing a mask or socially distancing from other employees.
The guidance emphasizes that “the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation.” The ADA requires a reasonable accommodation unless the accommodation poses an “undue hardship,” which it defines as “significant difficulty or expense.”
The EEOC says that employees can decline to take the vaccination based on their “sincerely held religious belief, practice, or observance” and are further protected by Title VII of the Civil Rights Act of 1964. The EEOC uses a broad interpretation of “religious belief” to include moral and ethical beliefs. For instance, an employee could have a strongly held moral belief against receiving unknown chemicals in their body. This would qualify.
Employers should assume the employee’s religious objection is valid unless they can cite an “objective basis” for questioning that belief. This is a tricky legal area that could lead to charges of discrimination under Title VII, so employers should tread lightly. If substantiation can be shown to be objectively needed, it could take different forms, including requests for written materials or the employee’s own personal explanation.
As with employees who decline vaccinations due to disability, those who decline because of religious or moral beliefs must be given a chance at interactively arriving at a reasonable accommodation. Title VII requires that a reasonable accommodation be made unless the accommodation would post an “undue hardship.” An undue hardship under Title VII would occur if it:
Proves too costly
Compromises workplace safety
Decreases workplace efficiency
Infringes on the rights of other employees
Requires other employees to do more than their share of potentially hazardous or burdensome work
Should an Employer Require Vaccination?
Mandating a COVID-19 vaccination as a requirement to enter the workplace might pose as many problems as it may solve, given the above exemptions and requirements for reasonable accommodations. Ford Motor Company, for instance, rather than mandating vaccinations, has purchased 12 subzero freezers to store the vaccine for those employees who want it.
High-risk industries may be more likely to impose a mandate, starting with the healthcare industry. Indeed, hospital workers were among the first to have the vaccine made available to them. The food industry, including meatpacking and processing plants, might also consider a mandate since the workspace requires close contact among employees.
Call Our Team at Robinson Bradford LLP
Whether you’re an employee who feels wronged by a workplace vaccine mandate, or an employer who must decide on whether to require vaccination, our team of employment law attorneys at Bradford Robinson LLP stands ready to guide and assist you. We have years of experience in dealing with discrimination issues and matters of reasonable accommodation.
If you’re in Stockton, Temecula, Costa Mesa, or Irvine, California, call us today to schedule a free consultation.