When can workers object to getting the Covid vaccine without losing their jobs?

The Covid pandemic has created many issues for employers and employees, but one of the most burning questions we get is “can my employer require me to have the vaccine?”  The short answer in most cases, is yes.  Employees still may object to certain inquiries about their vaccination choices, but it may not protect their jobs.

The EEOC advises us that employers may require vaccines as a safety standard. The EEOC says if the employee would “pose a direct threat to the health or safety of individuals in the workplace” by not getting the vaccine, the employer can require it.  Because a vaccine requirement can tend to screen out people with certain disabilities, employers need to consider several factors before they require vaccination: (1) the duration of the risk; (2) the nature and severity of potential harm; (3) the likelihood that potential harm will occur; and (4) the “imminence” of potential harm.  Given that Covid-19 has been declared a worldwide health emergency and it continues to mutate, courts that have considered Covid challenges have not argued with these factors. In simpler words, if an employee is at an employer’s premises and has contact with other employees or customers (and while there is still a decent chance of infection in the community), the employer can require vaccination as a job requirement.

Can an employee refuse to get the vaccine and not be terminated?  The short answer is maybe.

  • Disability Accommodation

If the employee has a disability that makes them not a suitable candidate for the vaccine, they can ask for a “reasonable accommodation” under the ADA.  That accommodation can be a request that the employer allow them to work remotely, or in an area where they have no contact with others. The employer must be flexible and work with the employee to see if they can identify a reasonable way to accommodate the disabled employee. If the accommodation poses an undue hardship in the employer, the employer can refuse to allow the employee on its premises.  The employer can also terminate an employee if their presence is required to perform the job and vaccination is necessary.

While a disability and medical excuse can be a reason for an employee to request an accommodation that would allow them to work unvaccinated, this is a narrow exception.  An employee may have to provide enough medical information to their employer for the employer to understand the need for accommodation.  Employers can get in trouble for delving too deep into the subject of the disability, and they cannot retaliate against the employee for asking for an accommodation or for being disabled.

  • Religious Accommodation

If an employee has a sincerely held religious belief, practice or observance that prevents them from being vaccinated, the employer must also accommodate them unless an accommodation poses an undue hardship.  An employer must be cautious about testing the employee’s religious beliefs through questioning but can ask for some general supportive information from the employee.

Anyone with questions about this area can get some additional information here. Even with this guidance, this area of law is very complex. Courts have not weighed in on many of these issues or their permutations.  An experienced employment attorney is an important resource in making any of these decisions.  Buchanan Law can help: (505) 900-3559.

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