With the COVID-19 vaccine in circulation, many of us are asking if our employers can require us to get it, how quickly, and if they can fire us for failing to comply. Questioning if your job will be in jeopardy based on your vaccine status can be stressful. The hope here is to explore your rights in the workplace when it comes to the COVID-19 vaccine.
So let’s start with a (not so) fun fact …
Surprise! Surprise! The generation that's most likely to spread COVID-19 is the same one that's least likely to get the COVID-19 vaccine... Millennials. There are loads of reasons as to why millennials say they are hesitant to vaccinate: the vaccination process is too long, there is a time limit, general forgetfulness, or simply being a part of the anti-vaccine movement.
Shockingly, only 1 in 4 millennials say that they’re going to get vaccinated.
That statistic is MIND BLOWING! Regardless of why millennials aren’t vaccinating, employers share the responsibility of slowing the spread with all of us. So, millennials (and everyone else), your employer may have something to say about your vaccination status and keeping your job.
The law is clear: your employer can generally require you to get a vaccine to continue employment.
However …
If employers want to put a policy in place that requires a vaccine, they can't be discriminatory. Employer vaccination policies must abide by the rules and guidelines set forth by the Equal Employment Opportunity Commission (EEOC). The EEOC’s job is to make sure that employers don't discriminate based on the American’s with Disabilities Act (ADA) and the Civil Rights Act (discrimination based on sex, religion, national origin, pregnancy, etc.).
Under the ADA, once you're hired, employers cannot make you get “medical exams” that aren't job-related or have a business necessity. Employers also can't ask employees any questions that could potentially reveal a disability. The EEOC came out with some guidelines for implementing vaccine policies.
Here are the most common questions/topics:
Is a vaccine a “medical examination” for ADA purposes?
Nope. But the way that employers require vaccines is important because if you, as an employer, are asking pre-screening questions, those questions could reveal disabilities, thus running afoul of the ADA.
If employers want to put a vaccine policy in place, what should they do?
It’s best to either: (1) encourage employees to voluntarily vaccinate and offer an incentive or (2) have a third-party administer those pre-screening questions so that medical information is kept separate from information in the employee’s file.
What if I have a medical condition or disability where I can’t get the vaccine?
Employers have to make reasonable accommodation for people with a medical condition or disability. At first, if the worker can get vaccinated, employers can keep him/her in another room or away from clients, customers, and/or other employees.
If that's not going to work, can I keep the unvaccinated employee from coming on the premises of my business?
If you can’t safely keep the person on premises away from others, such that he/she becomes a health risk, the next reasonable accommodation may be sending the person to work from home. In the age of Zoom, that's probably the best choice anyway. If you are an employee that can’t vaccinate due to disability/illness/medical condition, ASK TO WORK FROM HOME! If your employer won’t grant that reasonable accommodation and you end up terminated, you could have a lawsuit.
What if neither of these reasonable accommodations are available?
Sometimes, work can’t be done from home. If a reasonable accommodation can't be made, employers can fire employees and it won't be a violation of the ADA, but there are other state laws at play. If you’re an employer, make sure to consult a lawyer in your city/state. If you’re an employee and you think you were terminated unfairly, consult a lawyer as well.
I don’t have a disability but my religious beliefs prevent me from getting vaccinated. What do I do?
The other exception an employee can claim to a COVID-19 vaccination policy is religion. To claim this exemption, an employee has to have a sincere religious belief against vaccinations. If a religious exception is going to give an undue hardship on the employer, however, employers can fire you, subject to other state laws.
I’m an anti-vaxer. I’m not getting the shot. Can they fire me?
Participation in the anti-vaccine movement is not enough for a religious exemption. So, guess what anti-vaxers? If you want to keep your job, don't be making false claims with your employer about religious beliefs. Yes, they can fire you for refusing/violating policies.
I have more questions, where can I go?
Here’s the link to the EEOC FAQs:
If you have any other questions send me a message on social media, or if you want a more in-depth analysis of all the things COVID vaccines, listen to my podcast, “Now Call Your Lawyer!”