Many employers are requiring that employees eligible for COVID-19 vaccines must get the vaccine and must provide proof of this vaccination before returning to work. There is a clear public health justification for this requirement, and employers will be given wide latitude in enforcing this kind of policy. Affected employees, however, need to understand their rights and there are certain scenarios when these requirements may have to yield or be relaxed. There are also scenarios where employers requiring vaccines are obligated to provide corresponding benefits to employees who comply with this obligation.
Exemptions to Vaccine Mandates
There may be either disability-related or faith-based reasons for an affected employee to legitimately object to any mandatory vaccination requirement, and be exempted from this requirement when reasonable accommodations won’t pose an undue burden to the employer. Alternatively, the affected employee may have a pre-existing medical condition that dramatically increases the risk of adverse reactions to the vaccination. The employee may describe a sincerely held religious belief that would be violated if forced to participate in a vaccination. When these circumstances arise, and the employee can describe and seek a reasonable accommodation (such as continuing to work remotely) which does no impose an undue hardship on the employer, the employee may establish grounds to be exempted from a mandatory vaccination requirement. In this circumstance, if the employee is terminated there may be viable legal claims (sounding in discrimination or retaliation) to assert, and legal counsel should be sought.
By contrast, if the affected employee simply objects to the vaccination as not effective, unsafe or unnecessary, and does not trace this to any pre-existing medical condition or religious belief, this would not give rise to any legal claim if adverse action (including termination) is taken against the employee for refusing to be vaccinated.
Mandatory Vaccinations in Unionized Workplaces
In workplaces where employees are represented by a union, any requirement to submit to mandatory vaccinations would likely be subject to a collective bargaining requirement before being implemented. Depending on the terms of the applicable collective bargaining agreement, the union may be required to approve this mandatory testing protocol, and may be able to negotiate benefits for affected employees in exchange for agreeing to be vaccinated. Therefore, union employees should seek guidance from their representatives when any mandatory vaccination policy is implemented.
Confidentiality Issues with Mandatory Workplace Vaccines
Any information elicited from an employee in a vaccination program has to be handled confidentially and consistent with all legal obligations. Improper disclosure and/or use of this information could implicate many protected rights under federal, state and local laws protecting private medical information and/or disability-related information. Whenever this may be occurring, the impacted employee(s) sh0ould promptly consult with an experienced lawyer.
Compensation for Employees’ Time
Finally, when participation in a vaccination program is made a mandatory requirement of employment, any time associated with complying with this requirement should be paid at the employees regular rate of pay (or at overtime rates if this time results in working more than the legally recognized threshold in any pay period), and the employer should be responsible for any and all costs associated with this program.
All of the above-described obligations will be directly influenced by the nature of the workplace at issue. When the workplace involves public health duties and/or significant contact with others (either co-workers or customers) the employer will be given greater latitude in enforcing mandatory vaccination programs.
