As more people return to work one frequent question asked is whether your employer can require you to get the Covid vaccine. The Equal Employment Opportunity Commission (EEOC) has issued guidance that allows employers to institute a policy that requires employees to be vaccinated against COVID-19. Most states and local governments seem to be following this guidance.
There are four exception to this law:
1. The Vaccine must be available to the employee population, meaning it must not be hard to get a vaccine. Once the vaccine is available to the employee and they have access to the vaccine, an employer can require employees be vaccinated.
2. If you have a personal health problem or disability that would prevent you from getting the vaccine, an employer cannot require you to take the vaccine. Under the Americans with Disabilities Act (ADA), individuals with disabilities must be provided with reasonable accommodations that enable them to perform the essential functions of their job. If an employee has a health issue that would prevent them from getting the vaccine, a reasonable accommodation must be made by the employer. An example of a reasonable accommodation is allowing the employee to work from home.
3. An employee who has a sincerely held religious belief that prohibits them from getting the vaccine may be excused. This belief does not have to be common or part of a “recognized religion”, but it must be sincerely held meaning a genuine belief and not one that just developed to avoid getting the vaccine. If an employee has a sincerely held religious belief, the employer will have to provide that employee with a reasonable accommodation.
4. If the employee is part of a union, the vaccine policy could be addressed in their collective bargaining agreement. The current terms of the agreement with the union would address whether the employer can unilaterally implement a change and require the vaccine or whether they need to bargain with the union again about the issue.
Further, if the employer requires its employees to be vaccinated, the time spent obtaining the vaccine may be deemed “working time” requiring the employee to be compensated.
Remember sometimes the law that applies to you may differ if you work for the government or in the private sector. If you have any questions relating to employment discrimination and COVID, please contact us for a free consultation at 215-492-8080.