No COVID-19 vaccination is yet approved for use in the US. It may be well into 2021 before one is widely available, but the legal issues surrounding vaccines are worth considering. Some employers may require a vaccine for employees to keep their jobs or for applicants to get hired. Would that be a good idea?  Would it be lawful?

Reasons to require vaccination

Legally, employers are within their rights to make taking a COVID-19 vaccine a condition of employment:  for furloughed employees, current employees, and future hires. After massive disruptions this year due to the pandemic, employers may seek to put those disruptions in the past. A vaccine may be the best way to keep as many employees as healthy as possible and reduce the time taken off by infected employees. Management may want to take an extra step to limit the risk of employees or customers becoming infected.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued massive amounts of published Guidance to employers and employees over the past 6 months, stating repeatedly that Covid-19 testing is permissible for furloughed, current, and future hires who wish to enter the workforce.  In my opinion, the EEOC and federal and state courts will apply the same ideas to mandated vaccines in the workplace.  Absent good cause not to take them, an employee’s refusal will be deemed a quit.

Additional considerations:  If a vaccine isn’t required and many employees become infected, then those who become sick on the job may apply for workers’ compensation benefits. They may claim they got the infection on the job because management looked the other way as COVID-19 became common. A customer, contractor, or supplier who gets the condition after close contact with a heavily infected workplace may file a personal injury lawsuit against the employer for negligent failure to regulate the illness. They may argue that not requiring employees to be vaccinated caused their infection.

Employees may not like taking any vaccines or may feel the one for COVID-19 isn’t safe or effective. If a vaccination is required to work, a mere dislike of the vaccine, legally, won’t be enough to keep your job. New Jersey workers most often can be fired for any reason or no reason, as long as the adverse action  is not illegal.

Exceptions to the Rule

If there is a vaccination policy and an employee doesn’t want a vaccination for reasons of disability or as a reasonable accommodation to a disability, they would have to show that they’re disabled. If an employee’s sincerely held religious beliefs prevent them from being vaccinated, they could request a religious accommodation.

The employee would need to show that they are disabled or have a sincerely held religious belief that must be accommodated by skipping the vaccine. The employee could suggest alternate work arrangements to limit or prevent the harm the employer wants to avoid.  If the employer could show making an exception to a vaccine policy would be an undue hardship, then the employer and employee would have an impasse and the employer could fire the employee, but the employee might have a cause of action for a civil lawsuit.

A vaccine policy would have to be evenly applied and fairly enforced. It would be illegal discrimination to have this policy only apply to, or only enforced on, employees based on their protected class. A required vaccine policy for only those older than 40 or female or Hispanic would be an unequal term or condition of employment, outlawed by state and federal statutes.

An employer could encourage employees to get vaccinated, but that could only go so far. If a company offers a cash incentive or an extra vacation day, those who don’t want a vaccine due to a disability or religious belief could claim they’re missing out on a benefit of employment and unlawfully so.

How we can help

If you believe your employer is breaking the law by not accommodating your disability or religion, or you have questions about the law in your situation, please contact our Kingston law offices. You may reach us online or via email or phone. Contact us for a near-term, reduced rate initial consultation, whether protected by social distance and masks, Zoom, or phone.  We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, plus evening appointments during the week by pre-arrangement only. Call today.  You’ll be glad you did.