By all accounts, we can agree that the year 2020 was unconventional in every way. We were forced to live our lives in ways that many of us never imagined. And when we thought things were going to get better, it seems things only got worse. As we enter into the new year, it is our hope that our best days are ahead of us with the newly approved COVID-19 vaccine (“vaccine”).
No one knows how long it will be before everyone is vaccinated or even if the rushed vaccine will work. In fact, according to the Pew Research Center, while Americans’ confidence in the vaccine is increasing, many groups remain hesitant about getting vaccinated. It is becoming clear that whether we want the vaccine or not, employers are going to have a critical role in the administration of the vaccine. This article discusses employees’ rights as it relates to employer-mandate vaccinations.
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) published its guidance related to workplaces requiring the COVID-19 vaccine. This guidance helps us better understand what we can expect in the days and months ahead. Nevertheless, employers must not violate employment laws in mandating or administrating the vaccine.
Can my employer mandate the COVID-19 vaccine?
The short answer is likely yes. However, your employer cannot violate employment laws, such as the Americans with Disability Act (“ADA”) or the Title VII of the Civil Right Act of 1964 (“Title VII”), while mandating the vaccine. As outlined in the EEOC’s guidance, it is not likely that the vaccination requirement violates the ADA or Title VII because the requirement is not a medical examination given the vaccine mandate does not seek medical information.
Can my employer ask pre-screening before administrating the vaccine?
Your employer is not allowed to make disability-related inquires, which may elicit medical information, unless the inquiry is job-related or consistent with business necessity. If your employer (or a third-party with whom the employer contracts to administer the vaccine) asks such questions which elicit medical information during its pre-screening process and you do not feel it is job-related, you can refuse to answer the question. Your employer is not allowed to retaliate against or threaten you for refusing to answer the pre-screening questions.
Can my employer require me to provide proof of my COVID-19 vaccine?
Yes, but your employer cannot ask you follow up questions that may elicit medical information. This is critically important if you did not get vaccinated because of a medical condition. If you do not feel comfortable sharing why you didn’t get vaccinated due to medical reasons, you should consult with employment attorney to discuss your rights.
If I have a disability or religious belief preventing me from taking the vaccine, can I request a reasonable accommodation?
Yes, you can request a reasonable accommodation if you have a disability or a sincerely held religious belief. Your employer is required to reasonably accommodate unless such accommodation would pose an undue hardship. If the requested accommodation poses an undue hardship, you and your employer should engage in the interactive process to identify a reasonable accommodation.
If you cannot get vaccinated because of a disability or sincerely held religious belief and there is no reasonable accommodation, you may not be able to enter the workplace if your employer can prove that you a significant risk to others, but it does not mean that your employer has the right to terminate your employment. If your employer mandates the COVID-19 vaccine and fails to accommodate you, you should contact one of our experienced employment law attorneys for a consultation.