This story was first published on December 21, 2020.
During the coronavirus pandemic, some New Jersey residents were able to work from home.
But as vaccination efforts continue to grow in the state, officials say we are probably only a few months away from the widespread availability of the vaccine. This can be game-changing for employees who have spent months out of the office.
This also raises many questions.
Employers are required to keep their workplaces safe, but what if some workers don’t want to get the vaccine? Can your boss demand that? What if you get the vaccine, but your co-workers don’t? Do you have any rights?
Here’s what to expect.
Can my employer require me to be vaccinated against coronavirus?
Yes.
The Employment Opportunities Commission (EEOC) issued guidelines recently that labor law experts were waiting for. He said the Americans with Disabilities Act (ADA), which gives workers some rights when it comes to an employer who requires certain medical tests, does not apply when it comes to COVID vaccines.
“If a vaccine is administered to an employee by an employer to protect against hiring Covid-19, the employer is not seeking information about an individual’s shortcomings or current health status and is therefore not a medical examination” , said the EEOC on its website.
He said that the requirement for a COVID vaccine would be allowed.
Employers have an obligation to ensure that their employees have a healthy and safe work environment, said Dennis Alessi, partner and co-chair of Mandelbaum Salsburg on Roseland’s labor law group.
“It is on the basis of this obligation that employers are allowed to require testing of employees for COVID-19,” said Alessi, noting that he expected the EEOC to decide that employers would have the right to require employees to be vaccinated.
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Employers may require vaccinations if the failure to vaccinate results in a direct threat to other employees, agreed Timothy Ford, partner and member of the employment and litigation departments of Einhorn, Barbarito, Frost & Botwinick in Denville.
But that does not mean that employers should be in a hurry to institute new vaccine rules.
“Since the Pfizer vaccine has received only Emergency Use Authorization, employers should be reluctant to require until the Food and Drug Administration (FDA) expands the authorization to its standard approval, indicating that it is effective.” Ford said.
Are there exceptions for certain workers?
Yes.
EEOC said that employees may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from getting the vaccine, said Ford.
There are other exceptions.
Ford said an employee could be released from the vaccine requirement under the Title VII civil rights provision of Title VII of the Civil Rights Act of 1964, which could cover religious and other exemptions.
“These are generally the exceptions for certain vaccines, such as the flu vaccine,” said Ford.
He said that using the “direct threat” pattern, these exceptions, particularly in certain sectors, may not apply.
“It is widely expected that health care providers, teachers, nurses and senior care workers will be required to receive the vaccination,” he said.
Alessi said that there may also be exceptions for employees with underlying medical conditions, such as severe allergic reactions, which have proven to be a problem for several people who have received the Pfizer vaccine.
“We hope that employers have the right to require employees to provide medical documentation to qualify for this exception,” he said.
What if my boss doesn’t demand it? Can I get fired if I don’t want to work with unvaccinated coworkers?
You have options.
Ford said COVID-19 presented employers with many unprecedented challenges, but each worker’s case has variables and must be handled on a case-by-case basis.
There may also be different circumstances depending on the job and the sector.
“Generally, an employer can fire an employee for his refusal to meet the requirements of his position and / or for not showing up for work,” said Ford. “However, if an employee has a disability recognized under the New Jersey Anti-Discrimination Act or ADA, which would impact their ability to return to work in an environment with unvaccinated coworkers, reasonable accommodation will be required when employee.”
In addition, he said, Governor Phil Murphy’s executive orders require remote work whenever possible for non-essential business.
Alessi said employees can file a complaint under the Occupational Safety and Health Act (OSHA), saying the employer is creating an unsafe and unhealthy work environment because the employer does not require that all employees be vaccinated against COVID -19.
“If the employee is dismissed for making such a claim, he will likely have a retaliatory dismissal claim for exercising his rights under OSHA,” said Alessi.
If I have to show proof of a vaccine, isn’t it an invasion of privacy?
Yes, it is an invasion of privacy, said Alessi.
“However, employers were allowed to invade employees’ privacy by requiring the COVID-19 test,” he said, noting that the vaccine requirement would be a continuation of the employer’s obligation to maintain a safe and healthy work environment. “
Vaccines are already required in some industries, Ford said, like the flu vaccine.
“An immunization certificate may be required, limiting the information provided,” he said.
Even though an employer may require a vaccine, that does not mean that it should, said Ford.
“Employers may not want to lose valuable employees based on their refusal to be vaccinated, especially in the early stages of vaccination and its implementation under an Emergency Use Permit,” said Ford.
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Karin Price Mueller can be contacted at [email protected].