Can My Job Require That I Get Vaccinated?

Famighetti & Weinick — Fri, 19 Jan 2018 19:34:58 GMT

With many states declaring flu epidemics and with the spread of other communicable diseases, many employers, particularly in the health care industry, are requiring employees to receive vaccinations. Employees rightfully have concerns about being forced to receive a vaccination and so a common question is whether employers can force employees to be vaccinated against the flu or other diseases. Like most legal questions, the answer is not so simple. Today’s Long Island employment law blog explores the issue of whether employers can require employees to be vaccinated.

Employment at Will

The starting point to many employment law questions is the fact those most states, including New York, are employment at will states. Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful. Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu. An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.

In sum, because many employees are “at will” and can be terminated for any reason, employers are generally free to require that their employees be vaccinated against certain diseases. That is unless an exemption to the general rule applies. These exemptions are discussed below.

Union Contracts Set Terms of Employment

Employment at will can be altered in workplaces where the workforce is unionized. Unions typically negotiate contracts which set the terms and conditions of employment for members of the union. Usually, these terms include pay structure, vacation, health insurance and other benefits, sick leave, disciplinary procedures, and work hours. Unions, however, may also negotiate other terms such as whether the employer can require vaccinations. If you are a union member, you should speak with you union about whether your contract allows the employer to require employees receive vaccinations.

Religion May Prohibit Vaccinations

Title VII of the Civil Rights Act prohibits discrimination based on, among other things, religion. State and Local laws, like the New York State Human Rights and the New York City Human Rights law, also prohibit discrimination based on religion. These laws require that employers make reasonable accommodations for employees’ sincerely held religious beliefs. So, if by receiving a vaccination an employee believes he or she would be forced to violate a sincerely held religious belief, the employee may request a reasonable accommodation. In a hospital setting, such accommodations for a vaccination may include a mask and/or counseling with how to minimize the spread of infectious diseases. Many employers should have procedures in place to allow their employees to make requests for accommodations, but it may also be best to consult with an experienced employment lawyer to discuss your situation first. The employer will likely review the stated religious belief to determine whether it believes an accommodation is appropriate. An experienced employment lawyer can help you articulate the religious belief in a way more likely to trigger accommodations.

Disability May Prohibit Vaccinations

The Americans With Disabilities Act prohibits discrimination based on an employee’s disability. Like religion, State and Local laws similarly prohibit discrimination based on a disability. A disability does not need to be completely disabling. Rather, many medical conditions may constitute a disability under the disability statutes. If an employee has a medical condition which prevents the employee from receiving a vaccination, the employee can request an accommodation like under the religious exemption.

Pregnancy May Prohibit Vaccinations

The third statute which may protect employees from required vaccinations is the Pregnancy Discrimination Act . Like disability and religion, the Pregnancy Discrimination Act requires that employees make certain accommodations for pregnant employees. Pregnancy employees should be prepared to articulate a particularized danger in receiving a vaccination and not just generalized fear. An experienced pregnancy discrimination lawyer can discuss your particular situation and advice you accordingly.

Long Island Vaccination Lawyers

In sum, most employees will likely be subject their employer’s vaccination requirement. Notably, generalized beliefs about the medical dangers of a vaccine or social or other generalized beliefs about vaccinations unrelated to religion are not enough to trigger protections or accommodations. Like most legal questions, the issues related to forced vaccinations are specific to each situation. Today’s blog should not be used as legal advice, but merely as general information about workplace vaccinations. If you have a particular issue or question concerning workplace vaccinations, contact an experienced Long Island employment lawyer at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 or visit us on the internet at https://www.linycemploymentlaw.com.

Is Perceived Alcoholism a Disability?

Famighetti & Weinick — Thu, 19 Oct 2017 14:25:59 GMT

Can an employer fire an employee if it believes the employee has bloodshot eyes and believes it is because the employee is abusing drugs when, in fact, the employee is suffering from allergies? The highest state court in New York recently said “YES!”

On October 17, 2017, in Makinen v. City of New York, the New York Court of Appeals decided that employees in New York City, could not sue an employer for disability discrimination when the employer mistakenly perceives the employee to be an alcoholic.

New York Disability Discrimination Laws

Disability discrimination occurs when an employer covered under the law, treats an employee unfavorably because the employee has a disability. For example, an employer who is covered under the disability discrimination laws, cannot fire, refuse to promote, or deny benefits to an employee who has a disability.

Although there are three laws in New York available to protect employees from disability discrimination in the workplace, each law has different requirements. The Americans with Disabilities Act (ADA), being a federal law, has more stringent requirements than its state and local counterpart, the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). The NYCHRL, available for workers employed in New York City, offers the broadest protection.

Sometimes, however, such as in the Makinen case, New York City employees are not so lucky. So, why would the court in this case decide that it is permissible to lawfully punish an employee based solely on the employer’s mistaken belief that the employer is an alcoholic?

In the Makinen case, two New York Police Department (NYPD) police officers were referred to the NYPD’s internal Counseling Services Unit (CSU), because they were perceived as alcoholics. The CSU is an outpatient treatment center that focuses on helping police officers who are struggling with substance abuse. As it turned out, however, the parties now agree that the two police officers were actually not alcoholics. Yet, they were required to receive an alcohol-related diagnosis and undergo treatment.

On appeal, the issue was that the court could not reconcile between the unambiguous language in two sections of the New York City Administrative Code, which did not consider a mistaken perception of alcoholism to be a “disability” under the NYCHRL, with the legislative intent behind the NYCHRL which was to provide broad protection to discrimination victims.

After interpreting the two codes at issue, the court ultimately decided that a mistaken perception of alcoholism is not considered a “disability” under New York City law. The court held that although the NYCHRL is supposed to provide broader coverage than the NYSHRL or the ADA, it could not be construed more broadly because of the clear language stated in the NYCHRL which requires otherwise. Therefore, although the court thought that the NYCHRL should have protected the police officers in this case, the court could not rule in their favor or else they “would be rewriting the NYCHRL, not merely giving it a broad reading to effectuate its remedial anti-discrimination purpose.”

Disability Discrimination in the Workplace

In sum, it is important to know that just because an employee who works in New York cannot sue an employer for disability discrimination under New York City law after being treated less favorably based on a mistaken perception of alcoholism, it does not mean that the employee cannot sue at all. There are other laws available under which an employee can sue. After all, the purpose of these anti-discrimination laws is to protect those who are victims of discrimination in the workplace.

If you have questions about disability discrimination or any other type of employment discrimination or retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is https://www.linycemploymentlaw.com.

Today’s Long Island employment law blog was written by Hofstra Law School intern Thalia Olaya.

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