Americans are mostly holding their collective breath for a time when the government may approve a vaccine for the novel coronavirus. The severity of the pandemic in New York and New Jersey has been traumatic, but many residents have concerns about the safety of developing a vaccine quickly under pressure.
In fact, at the time of this writing, the federal government’s target date is January 2021 under Operation Warp Speed (the Department of Health and Human Services’ vaccine development program).
Employers are already considering whether they should and can as a condition of employment once it is available to make their workplaces safer from a public health perspective. New York employers may be worried about losing valued employees as well as keeping them safe. On the other hand, it would be understandable if employees are concerned about being some of the early people to take it if they perceive the government as rushing too quickly through the approval process.
Employers in certain industries such as health care or personal services like salons or gyms may have heightened concerns.
Federal agencies say employers can require vaccinations, with some exceptions
The Occupational Safety and Health Administration (OSHA) articulated its position in a 2009 letter during the H1N1 influenza A (a swine flu) outbreak. The agency said that an employer may require a vaccine, but that if an employee refuses “because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death,” the employee may have legal protection as a whistleblower.
The U.S. Equal Employment Opportunity Commission (EEOC) said that an employee may request an exemption from a required vaccination at work through a reasonable accommodation under federal anti-discrimination laws (usually applicable to employers with at least 15 employees) because of disability or religion.
If an employee with a disability requests a reasonable accommodation under the Americans with Disabilities Act (ADA) to skip the vaccine because they fear an unsafe reaction related to medical conditions, the employer may offer having the person work remotely, for example. However, if the person must remain physically at work to do their job and the employer cannot safely isolate them, the law allows exclusion from working if the person is a “direct threat” to others or the accommodation would be unreasonable or an “undue hardship” to the employer.
Regarding a request for reasonable accommodation because the vaccine would violate a “sincerely held religious belief, practice, or observance” under Title VII of the Civil Rights Act of 1964, the employer must not accommodate if it would create an “undue hardship to the business, meaning “more than de minimis cost.” Certainly, an outbreak of COVID-19 because of an unvaccinated employee could potentially be expensive in several ways. This is an introduction to a complex legal question. For example, state laws that apply to smaller employers may also impact these issues.