What are my Options if my Employer Requires me to Take One of the COVID Vaccines?

What are my Options if my Employer Requires me to Take One of the COVID Vaccines?

It is our opinion that the law will likely support an employer requiring an employee to take a COVID-19 vaccine. The Equal Employment Opportunity Commission (EEOC) has made it clear that federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. The Occupational Safety and Health Administration (OSHA) has said employers have the right to mandate vaccines, that getting vaccinated against COVID is “the optimal step” to protect the workplace, and is even recommending that employers require vaccinated employees in areas with substantial spread to wear face masks. And, the likelihood that courts will support employer vaccine mandates just got stronger for the Pfizer vaccine. On August 23, 2021, the FDA issued final approval for the Pfizer-BioNTech COVID-19 Vaccine for the prevention of COVID-19 disease in individuals 16 years of age and older.

However, there are at least two federal non-discrimination laws that may provide some protection for employees who oppose taking a vaccine. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based upon religion. Thus, a demonstrably-held religious belief against taking a vaccine could serve as the basis for a religious exemption from an employer-imposed vaccine mandate. In addition, although the Americans with Disabilities Act (ADA) does not prohibit employers from imposing vaccine requirements on their employees, various ADA rules that protect Americans with disabilities still apply. For example, the employee could assert that he has some disability, such as sensitivity or allergy to vaccinations, or anxiety resulting from taking shots. This could conceivably constitute a disability that would exempt the employee from the employer-vaccination requirement. This is true even if the employee’s requested accommodation appears contrary to federal, state or local public health guidance.

An employer will likely require an employee to complete an ADA Medical Exemption Form. The employer will also likely require medical documentation from an appropriate health care or rehabilitation professional. The provider does not have to be a medical doctor (MD). Examples may include, in addition to medical doctors, psychiatrists, psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. Additionally, an employer cannot request a person's complete medical records because the records are likely to also contain information unrelated to the disability and need for accommodation.

When a religious exemption is requested an employer is entitled to make some inquiry into the applicant’s religious beliefs. The employer may request documentation and verification that the employee’s religious exemption is based upon a sincerely held religious belief. It is not a requirement for the employee to belong to a church that prohibits vaccinations as part of church doctrine. Even if one’s opposition to vaccines is peculiar to an individual, one can qualify for the religious exemption if it is sincerely held. This examination will be fact-specific to the individual making the request.

Upon receipt of the request for an exemption based upon religion or disability, the employer is required to determine whether it can make a reasonable accommodation (e.g. a change in work hours to avoid contact with coworkers or remote work). However, if the employer concludes that any such accommodation would pose an undue hardship upon the employer, it may deny the request. The requesting employee would then need to challenge this denial. Furthermore, the employer may grant the religious exemption request on the condition that the employee adheres to other infection control measures, such as a mask requirement or frequent testing, provided the requirement for the other control measure is not done for retaliatory or discriminatory reasons. Each of these determinations require an individualized assessment, based on the particular facts and circumstances.

If your employer has required you to get a COVID vaccine as a condition of employment, and you wish to assert one of these exemptions, do not hesitate to contact Scaringi Law at 717-657-7770 and consult with one of our Employment Law attorneys.

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