In late 2020, COVID-19 vaccines began rolling out to the public. Some individuals could not roll up their sleeves quick enough to get the vaccine. Others, however, are reluctant to receive the vaccine for any number of reasons. With the vaccine now widely available, businesses, schools, and other public places are considering whether to require vaccinations for workers, students, customers and/or visitors.
Concerning workplaces, on May 28, 2021, the Equal Employment Opportunity Commission, the federal agency charged with regulating workplace discrimination, issued guidance relating to COVID-19 vaccines and employment. Among other things, the EEOC’s guidance addresses whether employers can require employees to get vaccinated. Today’s Long Island employment law blog discusses the guidance.
Generally, employers have broad discretion about how to govern their workplaces and their workers’ working conditions. Of course, some limitations exist. The National Labor Relations Act regulates some conditions, such as employees’ cooperating together to improve their working conditions. OSHA regulates workplace safety standards. The FLSA sets a minimum wage and overtime pay requirements. There’s also a myriad of anti-discrimination laws which prohibit employers from setting employees’ terms and conditions of employment based on protected characteristics such as age, race, disability, sex, national origin, or religion.
Because employers generally have discretion to set the terms and conditions of employment, requiring that employees be vaccinated is unlawful only if it intersects with one the various workplace laws enacted by the government. As an aside, because most workplaces are private businesses, not government entities, the Constitution is not issue, because the Constitution applies only to the government, not private actors. But, government workers may be protected by the Constitution and should not rely solely on the EEOC’s guidance to determine whether a workplace requirement to be vaccinated is lawful.
Of the various workplace laws which may be implicated by an employer’s requirement that employees be vaccinated is the Americans with Disabilities Act. The ADA prohibits employment discrimination based on disability. But, it goes further. It can prohibit employers from conducting medical examinations of employees and from making inquiries into employees’ medical conditions.
Does the law prohibit employers from requiring employees get vaccinated? The EEOC says no. In no uncertain terms, the EEOC says that federal discrimination laws do not prohibit employers from requiring that employees get vaccinated for COVID-19. Like everything in the law, there are some exceptions. First, employers must provide reasonable accommodations to employees for a disability or sincerely held religious belief. In other words, if a medical condition or sincerely held religious belief prohibits an employee from getting vaccinated, the employer may have to provide a reasonable accommodation, if it does not impose an undue hardship on the employer.
Second, employers cannot impose vaccination requirements which may, unintentionally, have a discriminatory impact on the workforce. For example, the EEOC suggests that some individuals may be in demographic groups which make it harder for them to have access to vaccinations. If a workplace vaccination requirement disparately impacts this group, the employer may have engaged in unlawful discrimination.
Further, rules which apply differently to different employees based on race, religion, sex, age, etc. may also be unlawful, even if well intentioned. For example, if a company requires only employees with underlying conditions who are at greater risk for coronavirus to get vaccinated, the company may have engaged in unlawful discrimination, even though its intention was to protect those individuals.
Employees who do not want to get vaccinated for personal reasons, unrelated to medical reasons or religious reasons, generally will not have a lawful basis to oppose vaccination requirements. But, individuals with religious beliefs or medical conditions which prevent vaccination may request reasonable accommodations. Though not an exhaustive list, some examples of reasonable accommodations offered by the EEOC are allowing the employee to wear a mask, to maintain social distance, or assigning the employee to a shift which may reduce exposure to others.
Can employers demand proof of vaccination from employees? Yes. Employers can ask employees about their vaccination status without violating federal anti-discrimination laws. But, employers must maintain the confidentiality of employees’ vaccination status, just as it they must with any employee medical information.
This blog is not an exhaustive explanation of all the laws which may be implicated when an employer requires that employees be vaccinated for COVID-19. Indeed, state and local laws may be implicated, as well. For example, in New York, the state Human Rights Law and the New York City Human Rights Law are generally broader than the federal counterpart. Further, vaccination requirements may implicate concerns relating to union contracts.
Employers considering implementing a COVID-19 vaccination requirement in the workplace should consult with experienced employment law attorneys before promulgating such rules. Similarly, employees subject to a workplace vaccination requirement and who do not want to be vaccination for any reason, should also consult with an employment attorney to understand the laws and rights which apply to the particular situation.
Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. The firm is experienced in litigating employment vaccination cases. Contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.
The complete guidelines from the EEOC concerning COVID-19 is available on the EEOC website.